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

 
ex-HA, USN
Docket No. ND04-01160

Applicant’s Request

The application for discharge review was received on 20040714.  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 20041222.  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

Applicant’s issues, as stated on the application:

1.  “The discharge I received is inequitable because of improper behavior on the behalf of myself, my fellow enlisted peers including admired superior officers.  My immaturity to make a proper decision upon my discharge given myself was taken advantage of by the administrative staff at the Portsmouth Naval Base and Hospital in 1995-1996 at Portsmouth, Virginia.  I was given no advisement or advisor in order to make a proper decision concerning my future.  My entire case was mishandled and I was misled according to Naval Code of representation in relevant matters as my case and also in the Naval Code of Mercy.  My enlistment was a wonderful and painful experience.  Injustice on behalf of my superiors in this my case has cause my life great tribulation as of these last eight long years.  If at all possible please consider upgrading my discharge to Honorable Status or to General/Under Honorable conditions.  I proudly served my country my own life.  Please let not my time served be in vain.  Thank-you.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR (J)		930331 - 930430	ELS
	Inactive: USAR (DEP)	930726 - 930727	ELS
	Inactive: USNR (DEP)	940301 - 940508	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  940509		Date of Discharge:  960516

Length of Service (years, months, days):

	Active:    02  00  08
	Inactive:  None

Age at Entry:  19		Years Contracted:  4 (12 month extension)

Education Level:  12			AFQT:  50

Highest Rate:  HA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (1)	Behavior:  2.80 (1)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  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 3630620.

Chronological Listing of Significant Service Events:

950809:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 950802, tested positive for THC.

950906:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 950823, tested positive for THC.

950909:	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.

951120:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse, and by service record entries.

951120:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments (verbatim):  HA H_ (Applicant) has had two positive urinalyses in two months’ time evincing a total disrespect for the Navy’s Zero Tolerance policy and its values.  It is my strongest recommendation that HA H_ (Applicant) be separated with an Other Than Honorable discharge.

960123:	BUPERS advised NAVMEDCEN PORTSMOUTH VA that Letter of transmittal (LOT) signed by direction and requested the LOT be signed by the C.O. or Acting C.O. as required by regulation.  Discharge action held in abeyance.

960415:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments (verbatim):  HA H_ (Applicant) has had two positive urinalyses in two months’ time evincing a total disrespect for the Navy’s Zero Tolerance policy and its values.  It is my strongest recommendation that HA H_ (Applicant) be separated with an Other Than Honorable discharge.

960425:	BUPERS 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 19960516 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).

Issue1:   The Applicant has not provided any evidence to support his claim that he was given “no advisement or advisor in order to make a proper decision concerning my future.”  The Applicant’s service record documents that the Applicant was provided the opportunity on 950909 to consult with counsel and present his case to an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification.  There is credible evidence in the record that the Applicant used illegal drugs on two separate occasions.  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 was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

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 positive employment record, a drug free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   

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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023