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

 
ex-SR, USN
Docket No. ND03-00733

Applicant’s Request

The application for discharge review was received on 20030319.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “omit from my record.”  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040224.  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 and the narrative reason shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  I don’t feel my discharge was improper, what I did was wrong I embarrassed myself, my family, and the navy when I got discharged I promised myself I would straighten up and I did I attended the divers institute of technology in Seattle, WA and I am currently working with company in Biloxi Mississippi.  With all that has happened since Sept 11 and me looking for a career with excitement & benefits I am hoping to get my discharge upgraded.”

Documentation

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

DD Form 149

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930115 - 930222	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  930223		Date of Discharge:  941209

Length of Service (years, months, days):

	Active:    01  09  17
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  56

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (2)	Behavior:  3.00 (2)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SASM, AFEM, BATTL “E”, .45 CAL Pistol Marksman

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

940729:	NJP for violation of UCMJ, Article 86: UA 2200 940717 until 1801, 940718 (20 hours).
	Award:  Forfeiture of $200.00 pay per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

940730:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Article 86 UA as evidenced by CO’s NJP held on 940729.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

941104:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 941031, tested positive for [Methamphetamine].

941110:	NJP for violation of UCMJ, Article 112a: Wrongful use of methamphetamine.
Award:  Forfeiture of $416.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

941111:	Drug and Alcohol Abuse Report: Applicant found not dependent, recommended for separation. [Extracted from CO’s comments]

941112:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a positive urinalysis sample as indicated on Navy Drug Laboratory San Diego message 042052 Nov 94.

941115:	Applicant advised of his rights and having elected 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.

941120:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a positive urinalysis sample as indicated on Navy Drug Laboratory San Diego message 042052 Nov 94. 

941123:	NJP for violation of UCMJ, Article 86: Failure to go to restricted muster.
	Award:  Forfeiture of $100.00 pay per month for 1 month.  No indication of appeal in the record.

941201:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

941207:	NJP for violation of UCMJ, Article 86: Missing restricted personnel muster; violation of UCMJ, Article 91: Insubordinate conduct to a Petty Officer.
	Award:  Forfeiture of $416.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941209 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing career opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.   Additionally, the NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, will change the reason for discharge if such a change is warranted.  The summary of service clearly documents that drug abuse was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why he was discharged.  To change the Narrative Reason for Separation 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, an alcohol-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   

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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, 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