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

 ex-SR, USN
Docket No. ND04-00423

Applicant’s Request

The application for discharge review was received on 20040114.  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 listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040922.  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.  Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “MY DISCHARGE WAS INEQUITABLE BECAUSE IT WAS BASED ON FIVE ISOLATED INCIDENTS IN 48 MONTHS SERVICE WITH NO OTHER ADVERSE ACTION.”

Additional issues submitted by Applicant’s representative (American Legion):

2.  “Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. 
_______________________________________________________________________

In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

Review of the available records reflect that this former member maintained satisfactory performance and conduct markings with an OTA of 3.2 and earned the SSDR(2), and MCOSR(2).  He was awarded NJP on 980831 for VUCMJ, Art. 86; NJP on 000503 for VUCMJ, Art. 112a; NJP on 000706 for VUCMJ, Art. 91; and NJP on 000808 for VUCMJ, Art. 112a.  His due process included an ADB which determined on 000623 that he wrongfully used a controlled substance and recommended separation with a GD.  While at the transit unit, he received his last 2 NJPs, was re-served, and then discharged Under Other Than Honorable Conditions due to the misconduct as authorized by NAVMILPERSMAN, Art. 1910-146.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because his discharge is too harsh in light of his overall 48 months of service.  He has not submitted 4 pages of additional documentation indicating a clean police record and attesting to his hard work and community involvement for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1). 

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Police record check, dated January 5, 2004 (2)
Job reference, dated January 5, 2004 
Letter from President-CEO, Weiser Security Services, Inc., dated May 13, 2003
Character reference, dated December 30, 2003 (2)
Applicant’s DD Form 214 (Member 1 and 4)
Seven pages from Applicant’s service record
Two unreadable pages

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960823 - 970618	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  970619		Date of Discharge:  010404

Length of Service (years, months, days):

	Active:    03  09  16
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.85 (7)	Behavior:  2.14 (7)		OTA:  3.23

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (2), N&MCOSR (2)

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:

980831:	NJP for violation of UCMJ, Article 86:  Absence without leave.
	Award: Forfeiture of $500 per month for 1 month, extra duty for 15 days.  No indication of appeal in the record.

990122:	NJP.  No further information found in service record.  [Extracted from NAVPERS 1070/604]

990125:	Retention Warning: Advised of deficiency (Insubordinate conduct towards a petty officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000428:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 000425, tested positive for THC.

000503:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance.
	Award: Forfeiture of $563 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

000504:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000504:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

000608:	Retention Warning: No further information found in service record.  [Extracted from Commanding Officer’s letter dated 000830.]

000623:	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).

000706:	NJP for violation of UCMJ, Article 91: Failure to obey order or regulation.
	Award: Confinement for 3 days, reduction to E-1.  No indication of appeal in the record.

000707:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments (verbatim): I agree with the Administrative Board’s finding of Misconduct and their recommendation for separation.  However, I do not agree with the recommendation for a General (Under Honorable Conditions) characterization of service.  Regardless of SA W_’s (Applicant) performance as characterized by the witnesses that testified on his behalf, drug abuse in the Navy is intolerable.  A characterization of Under Other than Honorable is the only suitable characterization of service for a drug offense.  Following the announcement of the Boards’ decision, I checked the MILPERSMAN (April 2000 edition) and asked the Senior Board Member if they did not understand the guidance of article 1910-302 (Determining Characterization).  I was told that the Board was provided the October 1999 revision.  The April 2000 version provides additional guidance and examples of misconduct that should be considered for Under Other Than Honorable characterization, removing any ambiguity with regards to drug use offenses.  The Senior Board Member stated that the Board most likely would have determined an Under Other than Honorable characterization had the April 2000 version of the MILPERSMAN been available.

000808:	NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substance.
	Award: Forfeiture of $502 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

000819:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse.  [Date stamp on front page is 001030.]

000819:	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.  [Date stamp on front page is 001030.]

000830:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments (verbatim): SR W (Applicant) is being processed for Misconduct due to Drug Abuse.  SR W_ (Applicant) was processed at his previous command for drug abuse and elected an administrative board, which was held on 7 July 2000.  The Board found Misconduct and recommended a General (Under Honorable Conditions) discharge.  While awaiting final separation at Transient Personnel Unit Puget Sound, SR W_ (Applicant) continued his drug abuses as evidenced by his last urinalysis.  I feel he had no potential for further naval service and I strongly recommend discharging him with Other Than Honorable.

000830:	Applicant requested administrative leave pending completion of administrative separation.

010223:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse.

010223:	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.

010330:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of serious offense and misconduct due to drug abuse.  Commanding Officer’s comments (verbatim): SR W_ (Applicant) is being reprocessed for Misconduct-Commission of a Serious Offense and Misconduct-Drug Abuse.  The recommendation of Administrative Board was for a General (Under Honorable Conditions) discharge.  While at TPU, he has continued his problem of drug abuse as evidenced by a random urinalysis test.  SR W_ (Applicant) was re-served for Misconduct-Drug Abuse and Misconduct-Commission of a Serious Offense, based on his Non-judicial Punishment of 8 Aug 00.  I feel he has no potential for further naval service and I strongly recommend discharging him with an Other Than Honorable discharge.

010404:	Commander, Navy Region Northwest directed the Applicant's discharge 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, in absentia, on 20010404 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 states his discharge was based on five isolated incidents in “48 months.”  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) on five occasions including violation of UCMJ, Article 112a for illegal drug use on two separate occasions, thus substantiating the misconduct for which he was separated.  Drug abuse warranted processing for separation, normally under other than honorable conditions. 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.

Issue 2:  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 drug free lifestyle, and certification of community service 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