DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

ex-EMFN, USN  
Docket No. ND03-00664

Applicant’s Request

The application for discharge review was received on 20030305.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions and the reason for the discharge be changed to “single misconduct incident.”  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040205.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service and reason for discharge was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge and narrative reason shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge was inequitable because it was based on one incident in 58 months of service with no other adverse action.  My offense occurred on leave over the New Years holiday.  Due to my intoxication on New Years Eve, I do not even recall committing the offense.  My offense was not committed while on my active duty post and did not affect my performance in the USN.  If not for the one incident I would still be in the Navy serving my country.  My other than honorable discharge has disgraced and haunted me.  I would ask you to consider changing to under honorable conditions to reflect the almost five years of good conduct I worked hard to achieve in the Navy.  Thank you for your time and consideration.”

Additional issues submitted by Applicant’s representative (American Legion):

“2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of the application.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	920529 - 930307	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  930308		Date of Discharge:  980220

Length of Service (years, months, days):

	Active:    04  11  13
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  84

Highest Rate:  EM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, AFSM (2), NDSM, GCM

Days of Unauthorized Absence:  None

*  No Marks Found

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

980115:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 980112, tested positive for Tetrahydrocannabinol.

980211:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance between 971226 and 980105, to wit: marijuana.
	Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 30 days, reduction to EMFN.  No indication of appeal in the record.

980213:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your wrongful use of marijuana and misconduct due to commission of a serious offense as evidenced by your violation of UCMJ Article 112A: wrongful use of a controlled substance.

980213:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

980217:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and by reason of misconduct due to commission of a serious offense.

980219:	COMLOGGRU TWO directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980220 under other than honorable conditions for misconduct due to drug abuse (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Issue 1:  The Applicant states his discharge was based on one isolated incident in “58 months.”  To maintain proper order and discipline the military does not view isolated offenses as minor infractions even though the civilian world treats such offenses with leniency.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) for illegal drug use.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable.    Relief is therefore denied. 

Issue 2:  There is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, an alcohol-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   At this time, the Board determined the Applicant has not submitted any documentation to mitigate his misconduct while on active duty.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at "afls14.jag.af.mil".

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023