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

ex-SR, USN
Docket No. ND03-01430 

Applicant’s Request

The application for discharge review was received on 20030903.  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 20040617.  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 considered 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, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Dear Congressman:

I enlisted in the Navy in January of 2000.  I managed to make it through boot camp and advance on to Hospital Corpsman school.  I was transferred out of corpsman school for lack of good grades.  From there I was sent to a deck seamanship program, which I successfully passed.  I was then transferred to Mayport, Florida on the USS Philippine sea.  Once I arrived to the ship everything seemed to go wrong and I received a General discharge with Other Than Honorable Conditions in April of 2001.  Since then I have improved myself by setting personal goals and achieving them.  I believe that I deserve to have my discharge changed to an Honorable Discharge or at least a review for a change.

The first thing that I told myself was that needed to find a job that I can keep without conflict.  It didn’t take me long to accomplish that.  As soon as I arrived back home I started working for a company called Mobile One Auto Sound.  I am a very responsible and reliable sales representative there.  Every month I'm given a quota that I am required to meet.  I always meet that quota and because of that I was awarded salesman of the month this past December and January.  So far I have had no complaints from my superiors or my customers.

Another goal that I set for myself was enrolling back in school.  I enrolled at Delgado Community College nearly 3 semesters ago.  I am majoring in Radiology Technician program. I’ve managed to bring my g.p.a up from a 1.5 to a 3.0 in that time.  I have never been this motivated for school until I realized that I desperately needed a change in my life.  My academic advisors have also told me that they have seen a change for the best and that they are proud of me.

The goals that I’ve set for myself once I got discharged seemed very difficult to achieve.  Now it doesn’t seem that hard because I’ve already succeeded at 2 of them.  I told myself that I needed a good job and that I had to get back in school and I succeeded within the first year of being discharged.  The other goals that I have set for myself are: receiving a degree, starting a career, and raising a healthy family.  It seems as if 2 out of those 3 are just right around the corner.

The reasons that I have stated in this letter are very strong reasons to consider me for a Honorable Discharge.  I think that I have proven myself worthy of this benefit.  I am now a very responsible and trustworthy person who accepts responsibility when handed to me.  I'm asking you to strongly consider my appeal so I can further improve my life.

SINCERELY,

R_ P_ (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)	991220 - 000123	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  000124		Date of Discharge:  010423

Length of Service (years, months, days):

	Active:    01  03  00
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  50

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*        Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*No marks found in service record.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

010327:	NJP for violation of UCMJ, Article 112A: wrongful use of a controlled substance, to wit: methamphetamine.
	Award: Forfeiture of $521 per month for 2 months, restriction and extra duty for 45 days, reduction to SR.  No indication of appeal in the record.

010326:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

010327:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010327:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

010423:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse (use), authority:  NAVMILPERSMAN, Article 1910-146.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010423 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).

Issue 1:  The Applicant’s service record is marred by award of non-judicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated.  Drug abuse warranted processing for separation, normally under other than honorable conditions. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable.   Relief denied. 

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.   

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 his 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 his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 12 Feb 2001 until 15 Jul 2001, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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

A.  _______________________________________________________

Responsible	NAVPERSCOM                         Phone:   DSN             882-4438
Office	(PERS-832)				      COM     (901)874-4438
                                                                                        FAX             882-2624
	________________________________________________________

Reference	OPNAVINST 5350.4C The Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 12 Feb 01 until 15 Jul 01, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse, states:
		       
	________________________________________________________

Policy	Processing is mandatory for the following:
	
•	Positive urinalysis that was tested and confirmed positive at a Navy Drug Screening Lab (NAVDRUGLAB) or other DOD-approved lab.  If the commanding officer determines that the urinalysis result was caused by administrative errors (e.g., faulty local chain of custody, evidence of tampering) or that the drug use was not wrongful (e.g., prescribed medication, unknowing ingestion), then the member shall not be identified as a drug abuser and the positive urinalysis is not a drug abuse incident.  When this determination is made the command shall notify, via official correspondence, Navy Personnel Command (PERS-6) and the command's immediate senior in command of the circumstances that warranted such a determination.

•	Admission of drug use.

•	One or more military drug related offense(s).

•	Nolo contendere, no contest plea in civil courts.

•	Civil conviction for a drug related offense(s).

•	Actions tantamount to findings of guilt in civil courts:

•	Deferred prosecution
•	Entry in pretrail intervention program

	Drug related offenses include the following:

•	Drug Abuse - illegal or wrongful use, possession of controlled substances.

•	Drug Paraphernalia - all equipment, products, and materials that are used, intended for use, or designed for use in injecting, inhaling, or otherwise introducing controlled substances into the human body in violation of law.

•	Drug Trafficking - the sale, transfer, or possession with the intent to sell or transfer controlled substances.
	________________________________________________________

Procedures	Notification procedures are used for the following situations:

•	Conviction/offense occurred in a prior enlistment or pre-service and processing for fraudulent enlistment is not appropriate.

•	Member self-refers to a qualified self-referral representative with the intent of acquiring treatment and is found to be drug-dependent by proper medical authority.

•	Processing is based on fitness for duty or certain service-directed urinalysis, per OPNAVINST 5350.4C (see following table).

•	Voluntarily discloses evidence of prior personal drug abuse during course of treatment/rehab.

•	Naval Reservists testing positive on accession test into the Reserve Program.

•	Prior service Applicants for Selected Reserve enlistments/ reenlistments whose break in service from a Selected Reserve or Regular component is more than 6 months.

	Other than the above exceptions, drug abuse must be processed 
	using administrative board procedures (MILPERSMAN 1910-404) 
	with Under Other Than Honorable (OTH) being the least favorable characterization of service considered.  This applies to both Regular and Reserve personnel.  (Example:  Drilling reservists who test positive on urinalysis may be processed for OTH regardless of when the drugs were ingested.)

	If member waives right to administrative board, under administrative board procedures, only General Court-Martial Convening Authority (GCMCA) or higher serves as separation authority.
	________________________________________________________
		
Use of	Use this table to determine basis for separation and characterization 
Urinalysis	of service.
Results
	NOTE:  Only urinalysis results from a NAVDRUGLAB or other DOD-certified lab will be used to refer a military member for appropriate disciplinary action and to establish the basis for separation and characterization of discharge.

Type	Usable in Disciplinary
Proceedings	Usable as basis for separation	Usable for OTH Char-acterization	
Search or seizure

•	Member's consent
•	Probable cause	

Yes
Yes	

Yes
Yes	

Yes
Yes	
Inspection

•	Random sample
•	Unit sweep	

Yes
Yes	

Yes
Yes	

Yes
Yes	
Medical - general diagnostic purposes (e.g., ER treatment, annual physicals etc.)	Yes	Yes	Yes	
Fitness for duty

•	Command-directed
•	Competence for duty
•	Mishap/safety investigation	

No

No

No

Yes

Yes

Yes

No

No

No
	
Service directed

•	Treatment facility staff (military)
•	alcohol rehab testing
•	naval brigs
•	Entrance testing
•	Accession training pipeline	

Yes

No

Yes
No
Yes

Yes

Yes

Yes
Yes
Yes

Yes

No

Yes
No
Yes

	1.  Yes for reservists recalled to active duty only (except Delayed Entry Program participants).
	________________________________________________________

Characterization	MILPERSMAN 1910-300 provides information for characterization
of Separation	guidance.  If the member has less than 180 days of service, an Entry Level Separation may be appropriate.   See MILPERSMAN 1910-308.
	________________________________________________________