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

 
ex-BUCN, USN
Docket No. ND03-01236

Applicant’s Request

The application for discharge review was received on 20030716.  The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant listed the Veteran of Foreign Wars as the representative on the DD Form 293.

Decision
A personal appearance hearing was conducted in Washington, D.C. on 20041116.  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 (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Re:  Docket No. ND00-01011
In accordance with the information provided to me in the copy of Review of Discharge, please accept this as my request for a personal appearance hearing before the Naval Discharge Board regarding my request to have the characterization of service on my discharge changed to General/Under Honorable Conditions.
I also elect to have a representative from the VFW present at the hearing to act as my counsel.  Thank You.”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

2.  “Inequity to be argued for a General Under Honorable VS Other Than Honorable.”

Documentation

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

Letter of recommendation from J_ H_ S_ Jr., dated October 25, 2005
Letter of recommendation from J_ K_ S_, dated April 19, 2001

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	871102 - 880501	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  880502		Date of Discharge:  920508

Length of Service (years, months, days):

	Active:    04  00  07
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  54

Highest Rate:  BU3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (5)		Behavior:  3.90 (5)		OTA:  3.64

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM, SSDR (3), QUAL Expert M16A1 Rifle

Days of Unauthorized Absence:  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:

880503:	Applicant briefed on Navy's policy of drug and alcohol abuse.

910822:	NJP for violation of UCMJ, Article 112a:  Wrongful use of cocaine, violation of UCMJ, Article 92: Failure to obey an order.
	Award:  Forfeiture of $481.00 per month for 2 months, restriction and extra duty for 45 days and reduction in paygrade to E-3.  No indication of appeal in the record. [Extracted from NMCB ONE THREE THREE MSG 30MAR92]

910920:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense as evidenced by one nonjudicial punishment for the wrongful use of cocaine.  An offense for which a bad conduct discharge is an authorized punishment.  [Extracted from NMCB ONE THREE THREE MSG 30MAR92]

910922:	Medical Officer diagnosed member not to be drug dependent and does not require detoxification.  [Extracted from NMCB ONE THREE THREE MSG 30MAR92]

910924:	Applicant advised of 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.  [Extracted from NMCB ONE THREE THREE MSG 30MAR92]

920330:	Commanding Officer recommended discharge with a general (under honorable conditions) by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense.  Commanding Officer’s comments:  BUCN T_ (Applicant) stated at his nonjudicial punishment proceeding that he did not recall the circumstances surrounding his use of cocaine due to alcohol intoxication nor does he recall actually using it.  Notwithstanding this assertion, he is still responsible for his actions and drug abuse cannot be tolerated.  Therefore, separation from the naval service is appropriate in this case.  However, BUCN T_ (Applicant) has been an excellent worker since reporting to this command and has had no other incidents requiring disciplinary or administrative action.  Accordingly, based upon his performance and character of service, I recommend BUCN T_ (Applicant) be separated from the Naval service with a discharge characterized as General.
	Additional Comments of the Commanding Officer:  Reference A. was initially mailed 971027.  Since that time BUCN T_(Applicant)’s conduct and performance has continued to be above average, which I believe should be taken into account in the characterization of his discharge.

920406:	BUPERS directed Applicant’s command to determine drug/alcohol dependency.

920421:	Drug/ETOH evaluation: Applicant is considered to be ETOH dependent and not drug dependent, but a drug abuser.  Drug abuse was confirmed by clinical evaluation.  Applicant offered Level III treatment via the VA after discharge.  Member agrees he has an Alcohol problem.

920428:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

920507:	Member was counseled regarding the Veterans Administration/Drug Rehabilitation Program and waived his right to VA rehabilitation treatment and elect to be administratively discharged.

010215:	NDRB documentary record review Docket Number ND00-01011 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920508 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).

Issues 1 and 2:  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 Applicant presented an oral argument during his personal appearance hearing that his personal problems were a mitigating factor. The Board determined that while his family problems may have been a contributing factor, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  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.  Relief denied.  

With regard to the discrepancy between the draft document mailed to the Applicant prior to the personal appearance hearing and the one presented to the Applicant on the day of the hearing, this discrepency was resolved by referencing the Applicant’s official service record.  This document contains the correct chronological listing of significant events found in the service record.  The Board considered the corrected chronological listing of dates and activities during deliberations.

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 Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty.  

The following if provided for the edification of the Applicant.  The NDRB has no authority to provide additional review of this case.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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