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

ex-HA, USN 
Docket No. ND03-01361

Applicant’s Request

The application for discharge review was received on 20030814.  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 did not list any representative on the DD Form 293.

Decision

A documentary discharge 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I used poor judgement and made a mistake while in service.  I fought to stay in but was discharged with a general discharge under honorable conditions.  I am a full time student and I work 30 hours a week in Anatomical Pathology Department of the Veterans Hospital in Loma Linda California.  I also plan to continue my employment after receiving my R.N. Degree.  Please give it great consideration to upgrade my discharge.  I sent letters of Character with this appeal.  Thank you.”

Documentation

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

Character Reference Letter dated February 13, 2003
Employment Reference Letter dated February 6, 2003
Letter of Reference from J. P_ J_, Ph.D. Clinical Coordinator, Addiction Treatment Program dated March 17, 2003
Transcript from San Bernardino Community College District  

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	921123 - 930323	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  930324		Date of Discharge:  950706

Length of Service (years, months, days):

	Active:    02  03  13
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  12			AFQT:  53

Highest Rate:  HN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.70 (2)	Behavior:  3.80 (2)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

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

GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

940716:	NAVDRUGLAB, OAKLAND, CA, reported Applicant’s urine sample, received 940623, tested positive for [Methamphetamine].

940913:	NJP for violation of UCMJ, Article 112a: Wrongful use of methamphetamine.
	Award:  Forfeiture of $466.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

940919:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by wrongful use of methamphetamine detected by a random urinalysis.

940919:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

941102:	Drug and Alcohol Abuse Report: Indicates amphetamine abuse as a result of a random urinalysis, found not dependent, recommended for Level III Treatment.

941208:	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 general under honorable conditions.

950201:	NAVDRUGLAB, SAN DIEGO, CA, reported Applicant’s urine sample, received 950123, tested positive for [Methamphetamine].

950315:	Commander, Naval Medical Center, Oakland recommended discharge general under honorable conditions by reason of misconduct due to drug abuse (use)

950407:	BUPERS directed the Applicant's discharge general under honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950706 with a general under 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:  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.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While she may feel that her youth and immaturity were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating she was unsuitable for further service.  Her service record is marred by award of nonjudicial punishment (NJP) for drug use thus substantiating the misconduct. Relief denied.

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 her misconduct while on active duty.  

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 her 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 15560C), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, 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