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

 ex-SR, USNR
Docket No. ND03-01221

Applicant’s Request

The application for discharge review was received 20030711.  The Applicant requests that the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant listed civilian counsel as his representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20040325.  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 3 to 2 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.  “Please consider the Applicant’s outstanding post-service conduct.  Mr J_ has consistently shown that he is worthy of an upgraded discharge since his discharge in 1992.  Averifiable employment record, extensive community service, certification of non-involvement with civilian authorities, as well as many letters of recommendation have been provided for the Board to consider.  Most of all Mr J_ is looking forward to appearing before the Board personally.  Only then will the Board really be able to see what kind of man M_ J__ has become.”

Documentation

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

Copy of DD Form 214
W2 for 2002
Certificate of Completion (Detention Officer Training Program)
Detention Officer Class Average Listing
Character Reference Letter dated July 8, 2002
Certificate of Recognition (Student Mentor)
Criminal Record Check Letter dated December 23, 2002
Criminal Record Check Receipt 
Criminal Information Request dated December 17, 2002
Reference Letter dated April 29, 2003
Character Reference Letter dated October 30, 2002
Letter in Support dated October 27, 2002 
Letter in Support dated October 30, 2002
Letter in Support dated December 10, 2002
Letter in Support dated November 30, 2002
Outstanding Performance Letter dated July 19, 1997
Letter of Appreciation and Thanks 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	None
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  910731		Date of Discharge:  920707

Length of Service (years, months, days):

	Active:    00  09  29
	Inactive:  None

Age at Entry:  19			Years Contracted:  8

Education Level:  12			AFQT:  42

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.61 (1)	Behavior:  3.40 (1)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized :  None

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:

910731:	Enlisted in the Seaman Apprenticeship program.

920501:	NAVDRUGLAB, Oakland, CA reports Applicant’s urine sample received 920427, tested positive for THC.

920513:	NJP for violation of UCMJ, Article 92: Disobeying a lawful order, violation of UCMJ, Article 112a: Wrongful use of controlled substance.
	Award:  Forfeiture of $392.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

920519:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

920522:	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.

920604:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

920606:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments (verbatim):  The Executive Officer, serving in the capacities as acting Commanding Officer, authorized urinalysis of Seaman Recruit (Applicant) based on probable cause principle.  A reliable eyewitness observed Seaman Recruit (Applicant’s) drug use and a certified drug dog “alerted” several separate times on Seaman Recruit (Applicant’s) bunk coffin locker the following morning.  The subsequent authorized urine test produced positive results.  Furthermore, Seaman Recruit (Applicant) confessed to at least two instances of drug use over the last several months.  Seaman Recruit (Applicant) is determined not drug dependent enclosure (9), refers; no Veterans Treatment Entitlement.  Recommended Other Than Honorable discharge.

920707:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

010309:	NDRB documentary record review Docket Number ND01-00493 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920707 under other than honorable conditions for misconduct due to drug abuse (use) (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.  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.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  

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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural error or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered by the Board.  The applicant could have produced evidence of continuing educational pursuits, extensive documentation of community service, and evidence of drug free existence, in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided sufficient documentation of good character and conduct.  Therefore, no relief will be granted.  

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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