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

 
 ex-SR, USNR
Docket No. ND03-00688

Applicant’s Request

The application for discharge review was received on 20030314.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D. C. area.  Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040408.  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 of 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 stated

Applicant’s issues, as stated on the application:

“1.  I request a discharge upgrade to a Honorable.  I feel that the discharge that I received was inconsistent with the standards of discipline.  I submitted to a Urinalysis voluntarily, which came back as negative, I was not using drugs of any kind.  I feel that I was not given a fair chance to defend myself against this charge and therefore feel that I should have been granted a Honorable discharge at the end of my enlistment.”

Documentation

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

Letter from Kootenai County Veterans Service Officer dated February 25, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  860214		Date of Discharge:  880603

Length of Service (years, months, days):

	Active:    02  00  17
	Inactive:  00  01  18

Age at Entry:  22			Years Contracted:  8

Education Level:  12			AFQT:  47

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.20 (3)	Behavior:  2.35 (4)		OTA:  2.20

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, BATTLE”E”

Days of Unauthorized Absence:  46

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:

860401:	Ordered to active duty for 36 months under the Active Mariner program.

880303:	Applicant declared a deserter on 880302 having been an unauthorized absentee since 0630, 880201 from USS DULUTH (LDP-6).

880319:	Applicant surrendered to military authorities on 880318 (2252) at USS DULUTH (LPD-6).  Returned to military control 880318 (2252).  Retained on board for disciplinary action.

880323:	NJP for violation of UCMJ, Article 86: UA 880201 to 880318 (46 days/S), violation of UCMJ, Article 87: (2 Specifications), Missing ships movement.
Award:  Correctional Custody for 30 days, forfeiture of $350.00 pay per month for 2 months, reduction to E-1.  No indication of appeal in the record.

880512:	NAVDRUGLAB [San Diego, CA], reported Applicant’s urine sample, received 880429, tested positive for cocaine.

880517:	NJP for violation of UCMJ, Article 112a: Use of a controlled substance, to wit: cocaine, violation of UCMJ, Article 86: Unauthorized absence.
	Award:  Forfeiture of $335.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

880517:	Medical evaluation found the Applicant not physically or psychologically drug dependent, however he is dependent on alcohol, recommended for ARC rehabilitation via VA hospital, recommended for retention.

880520:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by CO’s NJP as follows: 880517: Violation of UCMJ, Article 112a Use of a controlled substance to wit: Cocaine; evidenced by urine sample submitted to the Navy Drug Testing Lab San Diego, on 880429 which tested positive for Cocaine.

880520:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

880520:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  

880526:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19880603 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:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) on four separate occasions thus substantiating the misconduct.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate.  Relief denied.

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.  At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560A), effective  15 Jun 87 until 
10 Jan 89, 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