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

ex-YN3, USN
Docket No. ND03-01327

Applicant’s Request

The application for discharge review was received on 20030805.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20040526.  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 HONORABLE CONDITIONS (GENERAL)/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.  Discharge was result of Administrative Discharge Board / Non-Judicial Punishment with no consideration for judicial review.
  2.  Timing of discharge Board was purposely set so as to coincide with existing End of Active Obligated Service date, preventing the preparation of any adequate defense.
  3.  Commanding Officer’s decision concerning underlying NJP is questionable.
  4.  My personal conduct and mettle prior to military service, and since, include, but not limited to completion of a Bachelor’s Degree, gainful employment and career in the private sector, marriage, and the starting of a family.

  5.  To who it May concern:
	At the heart of the issues revolving my discharge from the US Navy is the result of my Non-Judicial Punishment proceeding.  Towards the end of my enlistment, I became unwittingly entangled in a very large drug-related investigation involving numerous service members and civilians, simply because of the people I knew and the company I kept in my off-time.  This is what I am referring to in Issue 1 Section 8 of my application.  My NJP was precisely that – Non Judicial.  The evidence provided at my NJP was entirely hearsay and non-corroborated statements of other service members, which to my knowledge, were never repeated under oath.  I denied all charges under oath.  I also believe at the time, that my Commanding Officer was under external ‘political’ pressure to ‘produce results’ which is why I call into question his decision in Issue 3.  It is my firm belief that his decision to recommend me for an Administrative Discharge Board was based entirely on his desire to appear ‘tough on drugs’, and did not concern himself with determining the validity of the accusations made of me.  He wanted to show the biggest ‘body count’ he could.  Basing his judgment on the least tenable and most ambiguous charge of the four that I faced, that of purchasing a controlled substance (the remaining three being two counts of using a controlled substance and one count of distributing a controlled substance), demonstrates my contention regarding his decision.
	Additionally, as I state in Issue 2, I faced an Administrative Discharge Board on the very day of my scheduled End of Active Obligated Service.  I had, at most, 45 minutes to which to consult with counsel prior to appearing before it.  This is an entirely inadequate amount of time, bordering on intentional malfeasance.  Nevertheless, upon the direction of my Commanding Officer, the Board proceeded with little more than perfunctory attention paid to my testimony, and I was summarily discharged with a General under Honorable Conditions discharge on the very day of my EOAS.  To use the vernacular, I had been railroaded.  Up until this time I had been an outstanding sailor, who had been meritoriously advanced under the Command Advancement Program (CAP) to E-5 the year before by the prior Skipper, and routinely received 4.0 on my evaluations.
	Lastly, I wish to state, more or less for posterity, that I was an upstanding and honest citizen before my military service, and have been since.  I am a humble person, and so accepted the Navy’s decision regarding my discharge as fate, that this was the way things would be.  I never challenged this before because I was ashamed that it had happened that I had kept company with the wrong type of people.  I accepted it because I was the only person affected.  Since that time however, I have completed my Bachelor’s degree (even though my discharge precluded my colleting GI Bill benefits I had paid into), married a fine woman who is also completing a degree, and fathered my first child.  I also hope to purchase my first house using my VA status.  My history now affects a great many more aspects and people.  I did not have nay sort of criminal record before nor have since my enlistment, I am very active in the community that I have lived in these past ten years, having built a career here, and I vote.
	In closing, I simply wish to implore you, the review board, to change my discharge to Honorable as I believe it should have been.  I am good and decent person and I deserve this.

Humbly yours

D_ G_ W_ (Applicant)”

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: USNR (DEP)	860829 - 870308	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  870309		Date of Discharge:  910308

Length of Service (years, months, days):

	Active:    04  00  00
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  13			AFQT:  99

Highest Rate:  YN2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.90 (6)	Behavior:  3.80 (7)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  OSR, SSDR, AFEM, NDSM

Days of Unauthorized Absence:  None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

870311:	Applicant briefed on Navy's policy of drug and alcohol abuse.

910226:	NJP for violation of UCMJ, Article 112A.  Wrongful purchase of lysergic acid diethylamide (LSD) on or about October 1990.
	Award:  Reduction to YN3.  

910226:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse. 

910228:	Drug/Alcohol Dependency evaluation for drug abuse found the Applicant not to be physically or psychologically dependent on drugs/alcohol. 

910228:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

910301:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under honorable conditions (general).

910304:	Drug and Alcohol Abuse Report:  LSD possession.  Command/Supervisor on 091008.  Clinical Psychologist found Applicant not dependent and recommended separation.  

910305:	Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to drug abuse (use).

910307:	CNMPC directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910308 under honorable conditions (general) 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 separation process was in strict compliance with the Naval Military Personnel Manual.  In accordance with regulation, mandatory processing for separation is required for sailors who abuse illegal drugs (use, trafficking, possession, etc.).  There is no evidence of impropriety, inequity or procedural irregularities in the Applicant’s discharge.  There is no indication in the record that the Applicant’s case was not properly reviewed by the chain of command, including the separation authority, Commander, Naval Military Personnel Command.  Relief denied.

Additionally, the Manual for Courts-Martial does not require legal review of nonjudicial punishment unless the nonjudicial punishment is appealed.  There is no indication of appeal in the record.  Relief denied.

Issue 2.  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.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The record does not support the Applicant’s allegation, that the timing of the Administrative Discharge Board was set with the intention of preventing the preparation of an adequate defense.  Therefore, relief is denied. 

Issue 3.  There is on evidence in the record, nor did the Applicant provide any evidence, to support that the Commanding Officer’s decision was improper or inequitable.  Relief denied.

Issue 4.  Normally, to permit relief, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no such errors after a review of Applicant’s case.  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, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle.  As of this time, the Applicant has not provided any documentation for the Board to consider.  Therefore, no relief is appropriate.

Issue 5.  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.  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.

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.  Navy Military Personnel Manual, (NAVPERS 15560A), Change 11, effective 
14 Jun 90 until 14 Aug 91, 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