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

 
 ex-AM3, USN
Docket No. ND03-00905

Applicant’s Request

The application for discharge review was received on 20030502.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  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 20040401.  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, 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 isolated incident in 48 months of service with no other adverse action.”

Documentation

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

Letter from Applicant dated April 22, 2003
Report Card from Pioneer Pacific College dated March 14, 2003 (3)
Report Card from Pioneer Pacific College dated April 15, 2003 (3)
Letter from Applicant dated October 1, 2003
Report Card from Wilsonville-Main Campus dated September 24, 2003
Report Card from Wilsonville-Main Campus dated July 3, 2003
Report Card from Pioneer Pacific College dated May 27, 2003 (2)
Letter from Applicant dated June 10, 2003 (2 pages)
Reference Letter from Director of Pioneer Pacific College dated June 12, 2003
Reference Letter from Criminal Justice Instructor of Pioneer Pacific College dated June 3, 2003
Reference Letter from Instructor of Pioneer Pacific College dated May 29, 2003
Death Certificate of Older Brother
Handwritten Letter from Applicant dated August 15, 2002 (2 pages)
Reference Letter dated May 24, 2003
Reference Letter dated June 1, 2003
Copy of Navy and Marine Corps Achievement Medal Certificate
Copy of Good Conduct Award Certificate
Copy of Professional Achievement Citation
Letter of Appreciation
Evaluation Report & Counseling Record (4 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	980824 - 980827	COG
	Active:   USN			980828 – 010501	HON

Period of Service Under Review:

Date of Enlistment:  010502		Date of Discharge:  020920

Length of Service (years, months, days):

	Active:    04  09  22
	Inactive:  None

Age at Entry:  27			Years Contracted:  6

Education Level:  12			AFQT:  49

Highest Rate:  AM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (2)	Behavior:  5.00 (2)		OTA:  3.93

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, NDM, NMCAM

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 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

010502:	Reenlisted at AIMD Diego Garcia for 6 years.

010727:	Completed Intensive Outpatient Treatment program.

020812:	NAVDRUGLAB [Jacksonville, FL], reported Applicant’s urine sample, received 020807, tested positive for [THC].

020828:	NJP for violation of UCMJ, Article 112a: Wrongful use, possession, etc, of controlled substance.
	Award:  Forfeiture of $840.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

020828:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020828:	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.

020829:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. 

020830:	Commander, Navy Region Southeast authorized 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 20020920 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 “48 months.”  To maintain proper order and discipline the military does not view serious offenses as minor infractions even though they are a first time incident on an otherwise clear record.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use.  Drug abuse warranted processing for separation, normally under other than honorable conditions. Relief denied. 

The NDRB noted an administrative error on the original DD Form 214.  Block 18 did not reflect the Applicant’s previous three years of honorable service.  The Board notified Commander, Naval Personnel Command, Millington, TN and recommended the DD Form 214 be corrected or reissued.   

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.

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), re-issued October 2002, effective 22 Aug 2002 until Present, 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