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

 ex-AR, USN
Docket No. ND04-01231

Applicant’s Request

The application for discharge review was received on 20040726.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  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.  The Applicant listed Civilian Representative as the 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 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Applicant’s issues, as stated on the application:

1.  “I T_ R_ (Applicant) request a change in my discharge from other than honorable to honorable.  I, T_ R_ (Applicant), was young and going through a difficult time.  I felt lost and could not adjust to military service.  I became involved with the wrong people.  I now realize that I committed a serious breach of conduct which I have come to regret.  I have been punished.  The status of my discharge is a stigma.  If it were changed I would be in a better position to provide a better life for my future wife and children.

I love my country and believe in the fairness and integrity of the U. S. Navy.  Applicant has learned a lesson.  I am gainfully employed and have returned to college, and am focused on building a new life as a responsible citizen.”

Additional issues submitted by Applicant’s representative (Civilian Representative):

2.  “Dear Executive Secretary,

I have been a personal friend of T_ R_ (Applicant)’s, mother for a number of years.  She knew that I served in the United States Navy for almost 4 years during World War leaving the service as a Lt (jg).

When Mr. R_ (Applicant) was discharged from the navy she and Mr.  R_ (Applicant) asked if I would help in dealing with the problems of his life and in his request for discharge review.

For the past 2 years I have befriended and served as a mentor for this young man who is making a serious effort to undo the serious error he made while in the service.

Mr. R_ (Applicant) has been continuously employed during this period of time.  He is respected by his employers, attends church with the members of his family.

As he reported he has enrolled in Phoenix University and has a perfect attendance record.  We meet on at least a weekly basis to review his school work and his grades are 3.5.

During my service I was both a company commander, and an instructor at Abbott Hall Midshipmen school in Chicago.  In my opinion M R_ (Applicant) is directing his study and his life with the same serious purpose as the college graduates I taught there.  I write in support of his appeal for review.”

Documentation

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

Applicant’s schedule & grades from University of Phoenix, undated
Applicant’s Application for Admission to University of Phoenix, dated September 24, 2003. (2 pages)
Applicant’s cover letter for supporting documentation from Civilian Representative’s, dated August 30, 2004.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	980630 - 980901	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  980902		Date of Discharge:  991012

Length of Service (years, months, days):

	Active:    01  01  11  (Doesn’t exclude lost time.)
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 

Education Level:  13			AFQT:  35

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  2.00 (1)		OTA:  2.50

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  14

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:

990525:	Command requested the Truman Medical Department to conduct an examination.  Reason for referral:  Service member was still a sleep in his rack and had to be waken-up by MS2 S_.  He found him to be intoxicated and smelling like liquor for these reasons I request test.
Clinical exam:  24 year old adult who missed muster and was found a sleep in his rack by his department.  Pt was out at a friends house until 0100.  Pt reports drinking 20 beers in 6 hrs.  Patient reports he drinks about 5 times a week.  Mental state – slow but coherent.  Positive alcohol.

990601:	Applicant on unauthorized absence from aboard the USS HARRY S. TRUMAN (CVN 75) on this date.

990610:	Applicant surrendered on board USS HARRY S. TRUMAN (CVN 75) on this date.

990616:	Applicant on unauthorized absence from aboard the USS HARRY S. TRUMAN (CVN 75) on this date.

990623:	Applicant surrendered on board USS HARRY S. TRUMAN (CVN 75) on this date.

990624:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 990617, tested positive for THC.

990721:	NJP for violation of UCMJ, Article 86 (2 Specs):  UA from aboard the USS HARRY S. TRUMAN (CVN75) 990601 until 990610, UA from aboard the USS HARRY S. TRUMAN (CVN75) 990616 until 990623, violation of UCMJ, Article 112a:  Wrongful use of marijuana on 990610,
violation of UCMJ, Article 134:  Incapacitated for duty on 990525.
	Award:  Forfeiture of $479.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

990723:	Applicant acknowledged he had been found dependent on alcohol but declined treatment.

990825:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible is under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Commanding Officer’s NJP held on 990721.

990825:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

990828:	Applicants medical examination report during separation states Applicant was alcohol dependent.
	Recommendation:  Monthly substance treatment evaluation.

990914:	Applicant acknowledged he had been found dependent on alcohol but declined treatment.

990917:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments (verbatim):  Airman Recruit R_ (Applicant) was awarded nonjudicial punishment on 21 July 1999, for wrongful use of marijuana, unauthorized absence and incapacitation for duty.  It is apparent that he is unable to adhere to the rules and regulations of this command and the United States Navy, and is unwilling to conduct himself in a manner conducive to good order and discipline.  I strongly recommend that he be separated from the naval service with an Other Than Honorable Discharge.

990918:	COMCARGRU TWO authorize 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 19991012 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 1-2:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While he may feel that his youth and immaturity were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by award of non-judicial punishment (NJP) for violating the UCMJ, Articles 86, 112a and 134 thus substantiating the misconduct.  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.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  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 the Applicant’s discharge proper and equitable.   

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 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.   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 24, effective 20 May 99 until 26 March 2000, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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