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

 
 ex-FR, USNR
Docket No. ND03-00950

Applicant’s Request

The application for discharge review was received on 20030507.  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 listed the Disabled American Veterans as the 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 - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant. 

Issues submitted by Applicant’s representative (Disabled American Veterans):

1.  “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable to that of Honorable.

The FSM served on active service from June 27, 1988 to July 26, 1990 at which time he was discharged due to Misconduct. 

As the FSM has not submitted any documentation in support of his claim, we as the representative, ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.

Respectfully,”

Documentation

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

None

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:  880517		Date of Discharge:  900726

Length of Service (years, months, days):

	Active:    02  01  00	Does not exclude lost time
	Inactive:  00  01  09

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT:  52

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.73 (3)	Behavior:  3.93 (3)		OTA:  3.73

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, BER, SSDR

Days of Unauthorized Absence:  9

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

880627:	Applicant ordered to active duty under the Active Mariner Program.

880629:	Applicant briefed on Navy's policy of drug and alcohol abuse.

890720:	NJP for violation of UCMJ, Article 86: Unauthorized absence 0700-2245, 890718.
	Award: Restriction and extra duty for 14 days, reduction to FR.  Reduction suspended for 6 months.  No indication of appeal in the record.

891006:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700, 890925 to 1252, 891004 (9 days/surrendered).
	Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 45 days, reduction to FR.  No indication of appeal in the record.

891006:	Retention Warning from USS PLUCK (MS0-464): Advised of deficiency (During this current enlistment, you have incurred military infractions for which you were punished under the UCMJ.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

891013:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 891004, tested positive for THC.

891017:	Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty.  Random urinalysis 890927.  DAPA recommended Level II treatment.  Physician found Applicant not dependent and recommended Level II treatment.  Commanding Officer recommended separate.  Comments: FR K_ (Applicant) has been a good worker while aboard the ship.  He has proven however that he is totally undependable when it comes to being here on time.  This irresponsibility has resulted in a 9 day UA and use of a wrongful substance during that UA period.  Further naval service is not recommended in his case.

891018:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 891004.
	Award: Restriction and extra duty for 45 days to run concurrent with present punishment.  No indication of appeal in the record.

900524:	NJP for violation of UCMJ, Article 112A: Wrongful possession of a controlled substance on 900524, to wit: in bachelor enlisted quarters.
	Award: Forfeiture of $362 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

900604:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 900524, tested positive for THC.

900608:	USS PLUCK (MSO-464) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your wrongful use of a controlled substance on or about 4 October 1989, your wrongful possession of a controlled substance on or about 24 May 1990 and by reason of misconduct due to a pattern of misconduct as evidenced by your unauthorized absence from 25 September to 4 October 1989, and your wrongful use of a controlled substance on or about 4 October 1989.

900612:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

900612:	NJP for violation of UCMJ, Article 112A: Use of a controlled substance to wit: use marijuana on 900524 as evidenced by report of urine sample by NAVDRUGLAB San Diego message 042019Z Jun 90.
	Award: Forfeiture of $362 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

900620:	Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty.  Consensual urinalysis 900528.  DAPA found Applicant dependent and recommended separation.  Commanding Officer recommended separate.  Comments: FR K_ (Applicant) is the second offense of Art 112A wrongful use of controlled substance.  Future naval service is not recommended.  Admin discharge is in progress.

900628:	Applicant found to be a cannabis abuser - no evidence of dependency.

900703:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due drug abuse and misconduct due to a pattern of misconduct.

900709:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900726 under other than honorable conditions for misconduct due to a pattern of misconduct (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 NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  The Applicant’s service record was marred by the award of five nonjudicial punishments, two for unauthorized absences and three for drug use/possession.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  Mandatory processing for separation is required for sailors who abuse illegal drugs which generally results in characterization of service under other than honorable conditions.  The Applicant was properly dual processed for discharge due to misconduct – pattern of misconduct and drug abuse.  Relief denied.

The following is provided for the edification of the applicant.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT ‑ A PATTERN OF MISCONDUCT.

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