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

   ex-QMSR, USN
Docket No. ND05-00165

Applicant’s Request

The application for discharge review was received on 20041105.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  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 20050107.  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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Since my discharge, I have been in no trouble.  I have completed drug rehab and am a productive member of society who pays income taxes.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	891027 - 891212	COG

Period of Service Under Review:

Date of Enlistment:  891213		Date of Discharge:  930521

Length of Service (years, months, days):

	Active:    03  05  09
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  53

Highest Rate:  QM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.90 (3)		Behavior:  3.90 (3)		OTA:  3.90

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM

Days of Unauthorized Absence:  15

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

891229:	DAAR:  Marijuana abuse, 1-3 times per week as result of service directed urinalysis.  Physician found Applicant not dependent and amenable and eligible for counseling and recommend Level I treatment.

930319:	DAAR:  Cocaine abuse, result of unit sweep urinalysis.  DAPA recommended separation.

930405:	Special Court-Martial
	Charge I:  Article 86 (2 specs):
	Specification 1:  UA from unit from 930219 to 930222.
	Specification 2:  UA from 930222 to 930309.
	Charge II:  Article 112a:
	Specification:  Wrongfully use cocaine, on or about 930105.
	Charge III:  Article 123a (10 specs):
	Specification 1:  On or about 18 February 1993, unlawfully make a certain check in the amount of $34.55 with intent to defraud.
	Specification 2:  On or about 18 February 1993, unlawfully make a certain check in the amount of $32.90 with intent to defraud.
	Specification 3:  On or about 18 February 1993, unlawfully make a certain check in the amount of $33.16 with intent to defraud.
	Specification 4:  On or about 22 February 1993, unlawfully make a certain check in the amount of $10.65 with intent to defraud.
	Specification 5:  On or about 22 February 1993, unlawfully make a certain check in the amount of $30.00 with intent to defraud.
	Specification 6:  On or about 22 February 1993, unlawfully make a certain check in the amount of $31.19 with intent to defraud.
	Specification 7:  On or about 22 February 1993, unlawfully make a certain check in the amount of $30.00 with intent to defraud.
	Specification 8:  On or about 22 February 1993, unlawfully make a certain check in the amount of $29.45 with intent to defraud.
	Specification 9:  On or about 22 February 1993, unlawfully make a certain check in the amount of $27.14 with intent to defraud.
	Specification 10:  On or about 22 February 1993, unlawfully make a certain check in the amount of $31.27 with intent to defraud.
	Findings:
	To Charge I:  Guilty
		Spec 1:  Not Guilty
		Spec 2:  Guilty
	To Charge II:  Guilty
	To Charge III and all specifications thereunder:  Not Guilty
	Sentence:  To be confined for a period of 50 days and reduced to E-2.

930413:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

930413:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

930428:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  

930510:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

930513:	NJP for violations of UCMJ, Article 86:  UA from 0730 930513 to 1005 930513.  Article 112a: Wrongfully use cocaine.
	Award:  Forfeiture of ½ pay per month for 2 month(s), restriction and extra duty for 45 days, RIR.  No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930521 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.   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 a conviction at court-martial for violations of Articles 86 and 112a of the UCMJ and subsequent nonjudicial punishment proceedings for violations of the same Articles.  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.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  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 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 5/93, effective 05 Mar 93 until 21 Jul 94, 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