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

 ex-ET3, USN
Docket No. ND04-00436

Applicant’s Request

The application for discharge review was received on 20040121.  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 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 discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

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 one isolated incident in 42 months of service with no other adverse action.”

2.  “My discharge was inequitable because I volunteered my wrong doing to the proper ships authorities with no encouragement or interregotation in hopes that I would receive assistance with my problem.”

3.  “Two days prior to my incedent, the ships Executive Officer announced to the crew that any sailor who needed help with a drug or alcohol problem need only to ask for help and help would be rendered with no disceplinary action whatsoever.”

4.  “Rather than receiving treatment, I was discharged and therefore forced to help myself.  I admitted myself into a drug and alcohol rehabilitation program and 4 months later I was rehabilitated.  Since then I have completed my undergraduate degree in Information 
Systems and have held critical positions with several large coorperations like SBC communications and Southern California Edison.”

5.  “I have started a family and my own business selling wholesale telecommunications products and services to large companies.  I am growing and want to continue improving myself.  I know that upgrading my discharge to Honorable will increase my chances for success in my future endevours.”

Documentation

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

Copy of DD Form 214
Outstanding E.D.M.T. Award from Los Angeles Department of Water and Power

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	920911 – 921102*	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  921103		Date of Discharge:  960524

Length of Service (years, months, days):

	Active:    03  08  22
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (24 extension)

Education Level:  GED		AFQT:  67

Highest Rate:  ET3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)	Behavior:  4.00 (1)		OTA:  2.85 
								(as stated on page 9)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, GCM, NER, MUCR, AFSM, LoC

Days of Unauthorized Absence:  None

*DEP contract not contained in service record.

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

960503:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 960422, tested positive for cocaine.

960514:	Applicant was screened by a navy drug and alcohol counselor and due to the fact that the navy does not have a Level III drug treatment program, Applicant will attend four narcotics anonymous meetings per weekend obtain personal counseling through his own resources.  Upon separation, he will contact the Bureau of Naval Personnel regarding any treatment that may be available.  Applicant does not object to this separation.

960521:	Medical evaluation:  Dr. S_ evaluated Applicant for drug abuse and found the Applicant to be drug dependent, not a drug abuser.

960524:	Applicant notified of intended recommendation for the least favorable characterization for service authorized in your case is general (under honorable conditions) by reason of misconduct due to drug abuse divulged through the Voluntary Self-Referral Program.

960524:	Applicant advised of rights and having elected 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 and to submit statements on his own behalf either verbally or in writing.  Did not object to separation.  

960819:	Commanding Officer, USS PETERSON, advised CHNAVPERS, of Applicant’s discharge with a general (under honorable conditions) by reason of misconduct due to drug abuse divulged through the Voluntary Self – Referral Program.  Commanding Officer’s comments:  Based on ET3 P_ (Applicant) medical evaluation, I feel it is best to expedite his immediate separation from the Navy.  I personally feel that retaining him would not be beneficial, nor in the best interest of the Navy.  He does not show any indication of being able to provide useful naval service.
	Discharged on 960524 with a General Under Honorable Conditions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960524 with a general (under 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 one isolated incident in “42 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 a positive urinalysis for illegal drug use, thus substantiating the misconduct for which he was separated.  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 consider his discharge proper and equitable.  Relief denied.

Issue 2. Reference (A) requires mandatory processing for separation by reason of misconduct due to drug abuse upon admission of drug abuse or positive urinalysis.   Separation under these conditions generally results in characterization of service under other than honorable conditions.  The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug use.  The Applicant’s allegations, that he was denied assistance and counseling for his personal problems, do not refute the presumption of regularity in this case.  Relief denied.

Issue 3.  The Applicant’s submits that the ship’s XO announced, “help would be rendered with no disciplinary action whatsoever” as a basis for changing the characterization of his discharge to Honorable.  The Applicant’s discharge was given a general (under honorable conditions) characterization.  Neither the Applicant’s administrative discharge nor his characterization of discharge is considered punitive or disciplinary.  The Applicant was separated as the result of an administrative action and not as a result of nonjudicial punishment or court-martial.  Relief denied.

Issues 4-5.  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.  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 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.  At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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