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

 ex-IC2, USN
Docket No. ND04-00520

Applicant’s Request

The application for discharge review was received on 20040212.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant listed the American Legion as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041022.  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.  Four (4) years service with HONORABLE discharge.  Fifteen (15) months of second enlistment served honorably.

2.  No write-ups or disciplinary problems under either enlistment-until discharge event.

3.  I sought treatment at my own expense while still in active service, and on my own accrued leave time (command did, however, extend leave time until all accrued leave time was exhausted).

4.  My last command made no offer of rehabilitative service at any time.

5.  Command decision to discharge was-overly harsh considering my prior honorable and unblemished service in the United States Navy.”

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

6.  “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.

The Board’s attention is invited to Blocks 12 and 18 of DD Form 214.  This former member entered active duty 971124 served honorably then reenlisted 011025.  Per BUPERSINST 1900.8, Block 18 should include “Continuous Honorable Active Service from 971124 until 011024.” and Block 12 amended as appropriate 

Review of the available records reflect that this former member maintained OTA performance and conduct markings of 3.13 (4.14 undated evaluation noted).  He earned the NAM, GCM, NER(2), AFSM, AFEM, MUC, SSDR(2), ESWS(2) during his enlistments.  He received a positive urinalysis and following due process notifications, was discharged Under Other Than Honorable Conditions due to misconduct as authorized by NAVMILPERSMAN, Art. 1910-146.

Essentially, as noted on DD Form 293 and attachment, this Applicant is requesting that his discharge be upgraded because it is too harsh in light of his overall service record.  In addition to his copies service records, he has submitted 2 pages of additional documentation: statement in support of VA claim and a statement from the Mickey Bush’s Program House, dated 030518, confirming his contentions that he attended rehabilitation treatment while still on active duty 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:

Letter from the manager of Mickey Bush’s Program House, dated May 18, 2003
Letter from Applicant, undated
Statement from Applicant, dated August 17, 2004
Letter from Director, Stepping Stone to Recovery Foundation, dated March 14, 2003
Thirteen pages from Applicant’s service record
Letter from Applicant, undated
Applicant’s QTC Medical Service, Notification of Appointment, dated Sep 27, 2004
VA’s ltr to Applicant dated Sep 24, 2004
Applicant’s VA’s case file/Rating Decision dated Sep 24, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	970722 - 971123	COG
	Active:   USN			971124 - 011024	HON

Period of Service Under Review:

Date of Enlistment:  011025		Date of Discharge:  030506

Length of Service (years, months, days):

	Active:    01  06  12
	Inactive:  None

Age at Entry:  33			Years Contracted:  4

Education Level:  12			AFQT:  64

Highest Rate:  IC2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  1.00 (1)		OTA:  2.43

Military Decorations:  None

Unit/Campaign/Service Awards:  NAM, GCM, NER (2), AFSM, AFEM, MUC, SSDR (2), ESWS, EAWS

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:

011025:	Applicant reenlisted for 4 years.

030224:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

030224:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

030317:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments (verbatim): IC2 (SW/AW) B_’s (Applicant’s) misconduct is clearly evidenced by the results of the urinalysis exam and by his own admission.  As such, he has clearly not demonstrated his ability to adhere to the Navy’s Core Values, “Honor, Courage and Commitment.”  His behavior is unacceptable for any Sailor, especially a recruiter who is the very symbol of the Navy in our communities.  It is in the Navy’s best interest that Petty Officer B_ (Applicant) be administratively separated from Naval service at the very earliest opportunity with an “other than honorable” characterization.

030326:	Commander, Navy Recruiting Command 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 on 20030506 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).

Issues 1-5:  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by the positive results of a urinalysis exam for illegal drug use.  The Board found no indication the Applicant was improperly denied treatment for his drug abuse.  Mandatory processing for separation is required for sailors who abuse illegal drugs. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

Issue 6:  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 should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.  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.  The Applicant can provide documentation to support any claims of post-service accomplishments 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 33, effective 16 Jul 2001 until 21 Aug 2002, 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