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

ex-AW3,  USN
Docket No. ND04-00193

Applicant’s Request

The application for discharge review was received on 20031117.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record 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 20040817.  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, 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.  “The reason I am requesting an upgrade is because I believe I deserve a second chance.  I made a one time, very bad decision and I have been paying for it almost everyday for the last three years.  I have been working for the Bureau of Land Management in Montana for the last two years and trying to pursue a fire fighting career.  The only thing holding me down is my discharge.  I understand the actions in the last two months in the Navy required an OTH discharge, however, I believe I served the Navy with four years and ten months of more than honorable conditions.  As a junior aircrewman in my squadron I received two Navy and Marine Corps Achievement medals as an E-4 including a pending Air Medal.  
    The only justification for my request is that I have kept as far away from drugs as possible for the last three years and holding a good job with the government.  I currently have a little boy and the only way I can provide for him the way I need to is to receive this upgrade.  By receiving this upgrade, I will be able to get veteran’s preference on my application and start a new career.”

Documentation

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

Letter of Recommendation dated November 6, 2003
Copies of Evaluation Report & Counseling Records (8 pages)
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	950629 - 950705	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  950706		Date of Discharge:  000626

Length of Service (years, months, days):

	Active:    04  11  21
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  64

Highest Rate:  AW2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.16 (6)	Behavior:  3.00 (6)		OTA:  3.54

Military Decorations:  None

Unit/Campaign/Service Awards:  NMCAM (2), JMUA, MUC, NAVY”E”, GCA, NDSM, AFSM, SSDR(2), NM, PMM

Days of Unauthorized Absence:  None

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:

000502:	NAVDRUGLAB [JACKSONVILLE, FL], reported Applicant’s urine sample, received 000426, tested positive for cocaine.

000509:	NJP for violation of UCMJ, Article 112a: Wrongful use, possession, etc., of controlled substance.
	Award:  Forfeiture of $748.00 pay per month for 2 months, extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

000515:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000515:	Applicant advised of 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.

000601:	Applicant declined drug treatment.

000609:	Commander, Navy Region Southeast authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000824:	Commanding Officer, Helicopter Anti-Submarine Squadron Light 48 advised CNPC of Applicant’s discharge on 26 June 2000 under other than honorable conditions by reason of misconduct due to drug abuse.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000626 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.  There is credible evidence in the record that the Applicant used illegal drugs.  Drug abuse warranted processing for separation.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The positive aspects of the Applicant’s service do not mitigate his characterization of service sufficient to warrant an upgrade.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity occurred during the Applicant’s enlistment.  Additionally, 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the discharge sufficient to warrant an upgrade.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  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 27, effective 27 March 2000 - 11 Feb 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