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

 ex-MMFN, USN
Docket No. ND04-00251

Applicant’s Request

The application for discharge review was received on 20031120.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed a civilian counsel as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20040511.  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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant’s counsel (civilian counsel):

1.  “J_ J_ S_ (Applicant) has led a exemplary life since his discharge from the United States Navy.  As in the Navy Mr. S_ (Applicant) has excelled in his family life, his work, his relationships with others and in his civic activities and responsibilities.  He aspires to further civic responsibility in his efforts to gain a position on the Bayonne, New Jersey. Fire Department.

2.  The Other Than Honorable Discharge was erroneously issued to J_ J_ S_ (Applicant).  Mr. S_ (Applicant) did not “wrongfully” or “knowingly” use or ingest a controlled substance in violation of Article 112a.

3.  J_ J_ S_ (Applicant) was a proud member of the United States Navy and served it with distinction as indicated by his record while in the Navy and the forthright and credible attestations of character from superiors which form a portion of the record before this NDRB.”

Documentation

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

Letter from Applicant’s attorney, dated October 28, 2003
Letter from Applicant’s attorney, dated December 10, 2003
Applicant’s DD Form 214
Letter from attorney to Director, White House Liaison Office, dated October 23, 2003
Letter from attorney to Director, White House Liaison Office, dated November 12, 2003
Letter from attorney to Director, White House Liaison Office, dated December 5, 2003
Letter from Applicant’s attorney with supplement, dated February 24, 2004 (2 copies)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930627 - 950131	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  950201		Date of Discharge:  970612

Length of Service (years, months, days):

	Active:    02  04  12
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  61

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (4)	Behavior:  2.75 (4)		OTA:  3.08

Military Decorations:  None

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

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 3630620.

Chronological Listing of Significant Service Events:

970130:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 970107, tested positive for LSD.

970213:	NJP for violation of UCMJ, Article 112A: Wrongful use of LSD on 970102.
	Award: Restriction for 45 days, reduction to MMFN.  Appealed 970214.  Appealed denied 970227.

970305:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all your drug incidents in your current enlistment

970306:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

970317:	Drug and Alcohol Abuse Report: Hallucinogens (LSD) abuse, ashore off duty.  Random urinalysis 970217.  Physician found Applicant dependent and recommended separation.  Commanding Officer recommends separation.  Comments: Average worker, has no potential for fixture naval service.

970411:	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 by a vote of 2 to 1 recommended discharge under other than honorable conditions.

970512:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

970521:	Commander, Amphibious Group TWO directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

990119:	NDRB documentary record review Docket Number ND98-00498 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970612 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 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 could have been provided to the Board include proof of educational pursuits, documentation of community service, and certification of non-involvement with civil authorities.  At this time, the Applicant has not provided sufficient documentation for the Board to consider.  Therefore, no relief will be granted.

Issue 2.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated.  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 evidence of record does not demonstrate that the Applicant did not commit the misconduct, i.e. drug use, for which he received NJP, and he was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Issue 3.  A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 11 Dec 97, Article 3630620  SEPARATION OF ENLISTED PERSONNEL 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