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

  ex-AZ3, USN
Docket No. ND05-00339

Applicant’s Request

The application for discharge review was received on 20041216.  The Applicant requests his characterization of service received at the time of discharge changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050713.  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.  “I would like my discharge upgraded due to a severe case of depression while serving in the Navy.  I believe this depression affected my whole outlook on life and prevented me from performing and coping with the pressures of my enlistment.”

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

“Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board also consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application. 

In accordance with Title 32, CFR, Section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, 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 SR is incomplete.  In particular, the medical records are missing.  Review of the available records reflect that this former member maintained satisfactory 3.50 performance/3.50 conduct markings and earned the NDSM.  He was awarded NJP on 020520 for VUCMJ, Article 112a.  Following due process notifications, he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by NAVMILPERSMAN, Article 1910-146.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because he suffered from depression during service that contributed to and mitigated his misconduct of record.  He has not submitted additional documentation 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, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

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:

DD-214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990611 - 990623	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990624		Date of Discharge:  020717

Length of Service (years, months, days):

	Active:    03 00 24
	Inactive:  None

Age at Entry:  25			Years Contracted:  4 (12 months extension)

Education Level:  11			AFQT:  59

Highest Rate:  AZ3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)		Behavior:  3.50 (2)		OTA:  3.42

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 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

990624:	Applicant reported for initial tour of active duty.

991120:	Applicant reports for duty, Aircraft Intermediate Maintenance Depot, NAS Oceana.

011220:	Transferred to Transient Personnel Unit, Norfolk.

 020520:	Urinalysis

020531:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 020529, tested positive for THC.

020613:	NJP for violation of UCMJ, Article 112a: Did on or about 020520, wrongful use a controlled substance.
	Award: Forfeiture of 1/2 month pay for 1 month, restriction and extra duty for 30 days.  No indication of appeal in the record.

020614:	Applicant notified of intended recommendation for discharge with the least favorable characterization under other than honorable conditions by reason of misconduct due to drug abuse.

020614:	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.

020702:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

020711:	Commander, Navy Region, Mid-Atlantic authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

020717:	Discharged

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020717 under other than honorable conditions for misconduct due to drug abuse (A).  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 (B and C).

Issue 1:  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  After a review of the Applicant’s case, the Board discovered no impropriety or inequity.  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 record was marred by an award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated.  There is credible evidence in the record that the Applicant used illegal drugs.  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.  Mandatory processing for separation is required for sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service of under other than honorable conditions.  Relief denied.

The Applicant contends that his problems in the Navy can be attributed to his "depression."  The burden of presenting substantial and credible evidence to support his issue is that of the Applicant.  However, he provided no documentation diagnosing his depression or in any other way supporting his accusation that his problems in the Navy were a direct result of depression.  The evidence of record does not document a diagnosis of depression or even a visit to a competent military mental health provider.  While he may feel that his depression was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.   Therefore, the Applicant was responsible for his conduct and he should be held accountable for his actions.  The allegation of depression as a mitigating factor, in and of itself, does not establish grounds for relief.  Relief denied.

In the absence of a complete service record, the Board presumed regularity of governmental affairs.  The discharge package, which documents the administrative discharge procedure, is complete.  Therefore, the Board verified that the Applicant’s discharge was conducted in accordance with that described in reference “A”.  If the Applicant feels his discharge was administratively flawed he bears the burden of establishing his issues through the presentation of substantial and credible evidence.  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 Naval service.  The NDRB is authorized 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 credible evidence of a substance free lifestyle, proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Relief denied.  

The Applicant remains eligible for a personal appearance hearing, provided the 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 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 V, Para 502, Propriety.

C.  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