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

  
ex-FR, USN
Docket No. ND04-01457

Applicant’s Request

The application for discharge review was received on 20040921.  The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requested a documentary record discharge review.  The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041229.  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. “ At the time of the incident that caused my separation I was immature and I didn’t think about the long term effects that this would have on my life.  At the time my father was very ill, and all that concerned me was returning home to be with him and family in his last days.  My father is decease now and I’m without employment and without a college education.  It is imperative that I’m granted an upgrade to ensure myself a better life.  With an upgrade I could enroll into school with assistance and complete college.”

Documentation

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

Character Reference Letter dated September 13, 200,
Applicant’ s DD Form 214
Copy of Commanding Officer’s Adverse Performance Evaluation Report Letter dated July 12, 2002
Copy of Enlistment Guarantees Contract
Copy of Evaluation Report & Counseling Record (3 pages)
Copy of Enlistment Data (6 pages)
Copy of Change of Duty Orders
Copy of Travel Voucher Summary (2 pages)
Copy of Travel Orders Information
Copy of Travel Orders (4 pages)
Copy of Certificate of Completion (NAVSEA PHASE BC2, B5A, D6A, and D6B 40 hours)
Copy of Travel Certificate 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	010222 - 010329	COG
	Active:   			None			HON

Period of Service Under Review:

Date of Enlistment:  010330		Date of Discharge:  020712

Length of Service (years, months, days):

	Active:    01  03  13		Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  39

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)	Behavior:  1.00 (1)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, BATTLE”E”, 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 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

020628:	NAVDRUGLAB [JACKSONVILLE, FL] reported Applicant’s urine sample, received 020625, tested positive for [THC].

020703:	NJP for violation of UCMJ, Article 112a: Use of controlled substance.
Award:  Forfeiture of $577.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

020703:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020703:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

020708:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) as evidenced by Commanding Officer’s NJP of 020703.

020711:	COMCRUDESGRU TWELVE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020712 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:  In the Applicant’s case, the Board discovered no impropriety or inequity and considers the Applicant’s discharge proper and equitable. While he may feel his immaturity and the stress caused by his family situation were contributing factors to his misconduct, they do not mitigate his disobedience of the orders and directives regulating good order and discipline in the naval service.  A service characterization of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) for illegal drug use.  The Applicant’s summary of service clearly reflects his disobedience of the orders and directives regulating good order and discipline in the naval service, and demonstrated he was unsuitable for retention. An upgrade to general (under honorable conditions) would be inappropriate.  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 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, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   The Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization based solely on the issue of obtaining Veteran’s benefits.  Additionally, the Board has no authority to upgrade a discharge for the purpose of enhancing employment opportunities as requested.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  These issues do not serve to provide foundation upon which the Board can grant relief.
 
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 additional 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 5420.174D 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