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

 
 ex-ETSN, USN
Docket No. ND03-00823

Applicant’s Request

The application for discharge review was received on 20030410.  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.  The Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040303.  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, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  In 1977 I enlisted in the United States Navy under the Delayed Entry Program while still attending High School.  In 1978, within a month of Graduation I was reporting for Basic Training in San Diego.

This was the beginning of a career.  I moved through the ranks building my skills, education and overall growth.  On May 25th, 1981 I was issued my first Honorable Discharge.

I continued advancing from that point, eventually working with NATO forces at a remote NAVCAMS location in Southern Italy.  On March 2nd, 1987 I reenlisted once again, acquiring my Honorable Discharge after almost 10 years of active duty.

After yet another duty station change and another promotion, I found myself as an E-6 aboard an Aegis Cruiser Due to my performance and attitude on board, I was soon assigned the duties of Division Petty Officer.  My rapid placement into a weighty position (ahead of senior E-6’s, in fact) was proof in itself to my dedication to the service and my ship.

The military at that time began their crackdown on the “zero tolerance” program.  I had at that time taken countless urinalysis tests without incident.  When I was informed I tested positive I was probably as awestruck as anyone, as I had a Naval career and I wasn’t a drug user.  Looking back over my whereabouts those few weeks prior, I was at one time in the same room where drugs were being smoked, and apparently that was enough to show in the results.

To this day I still don’t know what happened aboard ship.  It was a whirlwind of advice and discussions — should I get an attorney and push the issue (guaranteed harsh punishment if I were found guilty), should I go to mast and request my past record be considered (and most likely get counseled, closely watched, and at worst a reduction of rank).  I opted for the later, as I was indeed career oriented and wished to continue with the Navy.

During Captains Mast I was made an example of.  Not until I was in front of the captain was I told I was being charged with narcotics as well (which I denied fully then and still will to this day).  I was immediately reduced to E-5, then to E-4.  My discharge papers have me listed as an E-3.

I don’t know what happened those last 2 months.  I am still in the dark regarding what transpired at mast.  I do know that I put in over 10 documented and proven honorable years in the Navy and in service for my country.

I have moved on with my life.  Those first several years after being spit out of the system were somewhat unsettling, as the Navy was all I had known since high school and I went from being a senior Petty Officer to a nobody looking for a job.  I got married, got divorced, went through several jobs, but I finally got back on track.

For over 3 years now I have been the owner of a very successful business.  I have since remarried, and am regaining the status I lost when I left the military.  At this point in time I want to put everything in order.  As far as I know the urinalysis results may not have been mine, but I see that as no longer the case.  I have moved on, and I am requesting that my records reflect all the honorable service I have dedicated to the Navy.  Please let the first 10 years overshadow those last few months, and let my final DD-214 reflect the honorable service I performed in the past.”

R_ E_ D_

Documentation

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

Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	771216 - 780709	COG
	Active:   USN			780710 - 810525	HON
	Active:   USN			810526 – 870302	HON 

Period of Service Under Review:

Date of Enlistment:  870303		Date of Discharge:  890526

Length of Service (years, months, days):

	Active:    02  02  24
	Inactive:  None

Age at Entry:  26			Years Contracted:  6 

Education Level:  12			AFQT:  69

Highest Rate:  ET1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.90 (4)	Behavior:  3.40 (4)		OTA:  3.65

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, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

870303:	Reenlisted at NAVCAMS MED NAPLES, IT for 6 years.

890418:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance on 890403.
	Award:  Restriction to ship for 60 days, reduction to E-5.  No indication of appeal in the record.

890420:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

890502:	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 submit statement and the right to obtain copies of the documents used to support the basis for the separation.

890503:	Substance Abuse Evaluation confirms no evidence of physical or psychological dependence.
  
890505:	Commanding Officer recommended discharge with a characterization of general (under honorable conditions) by reason of misconduct due to drug abuse.  Commanding Officer’s comments (verbatim):  [Petty Officer D_ (Applicant), during a random urinalysis on 3 April 89, tested positive for THC.  Mast was held 3 April 89 with the results noted in paragraph 1d.  On 10 April 89 a unit sweep was held and Petty Officer D_ tested positive for cocaine.  Petty Officer D_’s performance as an Electronics Technician on board USS SAN JACINTO has been excellent.  In accordance with MILPERSMAN and OPNAVINST 5340.4A, recommend administrative separation of Petty Officer D_ with the character of separation of general under honorable conditions.] 

890516:	DAAR indicates marijuana abuse as a result of a random urinalysis, found not dependent, recommended for separation.  Subsequent urinalysis test conducted on 890410 also revealed cocaine abuse. 
 
890522:	CNMPC 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 19890526 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’s issues are without merit.  There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  Even though, the Applicant feels his character is demonstrated by his outstanding performance throughout his tenure in the Navy it does not mitigate misconduct during his final enlistment.  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.   

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 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