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

  
 ex-SMSN, USN
Docket No. ND03-00685

Applicant’s Request

The application for discharge review, received 20030313, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before a traveling panel.  The applicant listed American Legion as the representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington National Capital Region.

Decision

A personal appearance hearing was conducted in Washington, D.C. on 20030925.  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 was discovered by the NDRB.  The Board’s vote was unanimous that the character and the narrative reason for the discharge shall not change.  The discharge shall remain:   UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  (Equity Issue)  This former member 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 this application.

Documentation

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

Reference Letter from Pastor C_ M_
2 Copies of Discharge Summary from Memphis Alcohol & Drug Council, INC, IOP Program (2 pages)
2 Copies of Certificate of Completion from Memphis Alcohol & Drug Council (Aftercare) dated December 12, 2002
Certificate of Recognition from Memphis City Council (Outstanding Contribution to the Community) 
Letter from C_ G_, Executive Director Memphis Alcohol & Drug Council, INC to R_ S_, Representative American Legion dated February 12, 2003.
Greater Johnson Baptist Church business card.
Character References (13 letters) 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	880514 - 880601	COG
	Active:   None		

Period of Service Under Review:

Date of Enlistment:  880602		Date of Discharge:  900124

Length of Service (years, months, days):

	Active:    01  07  23
	Inactive:  None

Age at Entry:  34			Years Contracted:  4 

Education Level:  16			AFQT:  42

Highest Rate:  SH3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.87 (3)	Behavior:  2.40 (4)		OTA:  2.60

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

880604:	Applicant briefed on Navy's policy on drug and alcohol abuse.

891221:	NJP for violation of UCMJ, Article 112A: Wrongful use of cocaine on 891207.
	Award:  Forfeiture of $407.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to SHSN.  No indication of appeal in the record.

891227:	Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.

891227:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by wrongful use of cocaine on 891207.

891227:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

891227:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments (verbatim): [This command has reaffirmed and publicly adopted the CNO's Zero Tolerance Drug Abuse Policy.  The presence of this mbr (Applicant) in an operational environment seriously impairs combat readiness, security, efficiency and morale.]

900104:	Drug and Alcohol Abuse Report: Cocaine abuse, abuse denied.  Random urinalysis 891219.  DAPA and physician found Applicant not dependent and recommended separation.  Comments: SHSN (Applicant) shows no potential for further useful service due to substance abuse.
	Note:  Date of report corrected to 900104 from 890104.

901227:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

021115:	NDRB documentary record review Docket Number ND02-00494 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 900124 under other than honorable conditions for misconduct due to drug abuse (use) (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:  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, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   The Board appreciates the Applicant’s efforts to improve his life and his involvement in his church and encourages him to continue his participation.  However, the Applicant did not provide sufficient verifiable documentation of good character and conduct to mitigate his illegal drug use while on active duty.  Relief is not warranted.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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