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

 
ex-SKSA, USN
Docket No. ND04-00313

Applicant’s Request

The application for discharge review was received on 20031210.  The Applicant requests the characterization of service received at the time of discharge be changed to uncharacterized.  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 20041015.  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.  “I desire better employment.  The discharge I received portrays me as an advid user or distributor of drugs.  It has been almost a year since the offense.  It was one time assurance that has changed my whole life.  I was told and have read that after six months I may request a change of discharge.”

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000530 - 001030	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  001031		Date of Discharge:  030718

Length of Service (years, months, days):

	Active:    02  08  18
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  10			AFQT:  59

Highest Rate:  SKAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (4)	Behavior:  1.50 (4)		OTA:  2.25

Military Decorations:  None

Unit/Campaign/Service Awards:  NKM, N&MCOSR with Bronze Star, NDSM

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:

000525:	DD Form 1996/2: Question 28:  Drug Use and Abuse.  Have you ever tried or used or possessed any narcotic (to include heroin or cocaine), depressant (to include Quaaludes), stimulant, hallucinogen (to include LSD or PCP), or cannabis (to include marijuana or hashish), or any mind altering substance (to include glue or paint), or anabolic steroid, excepts as prescribed by a licensed physician? Applicant initialed yes.

000526:	Per phonecon possession of marijuana determined to be waiverable by Co, NRD Dallas.

000528:	Standard Form 93.  Report of Medical History.  Applicant revealed use of marijuana at least 20 times, last time December 20, 1999.

001031:	NAVCRUIT Form 1133/65: Applicant marked yes in Section III; Question 9: I have experimentally/casually used marijuana over six months ago.  Question 10:  I have been convicted of one drug abuse offense.  Applicant initialed yes to both questions.

010723:	Evaluation Report and Counseling Record:  Comments on Performance: *36, 37.  Strives to perform well, however, occasional judgment errors have resulted in tardiness.  These minor fractions are sometimes detrimental to divisional teamwork and morale.

010926:	NJP.  No further information found in service record.  [Date extracted from NAVPERS 1070/604, Awards.]

020516:	NJP for violation of UCMJ, Article 86 (2 specs: Unauthorized absence).
Award: Forfeiture of ½ months pay for two months, restriction and extra duty for 30 days, reduction to next inferior pay grade.  [Extracted from Evaluation Report and Counseling Record dated 020607.]  [Date extracted from NAVPERS 1070/604, Awards.]

030716:	NJP for violation of UCMJ, Article 112A:  No further information found in service record.  [Extracted from Evaluation Report and Counseling Record dated 030718.]  [Date extracted from NAVPERS 1070/604, Awards.]

030718:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse, authority:  NAVMILPERSMAN, Article 1910-146.

Applicant’s discharge package missing from service record

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030718 under other than honorable conditions for misconduct due to drug abuse (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).    

Issue 1:  The Applicant states her discharge was based on one isolated incident. 
The civilian authorities treat some offenses with leniency because they are a first time incident on an otherwise clear record; however, to maintain proper order and discipline, the military does not view such offenses as minor infractions.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions for violations of Articles 86 and 112A of the UCMJ, thus substantiating the misconduct for which she was separated.  Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief denied.

There is no law or regulation that authorizes a discharge to be automatically upgraded after six months.  A former service member has 15 years, from the date of discharge, to petition the board for consideration of an upgrade.  The Board does not automatically upgrade a discharge after six months.  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.  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), re-issued October 2002, effective 22 Aug 2002 until Present, 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 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

C.  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.

D.  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.  

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