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

 ex-AR, USN
Docket No. ND05-00368
 
Applicant’s Request

The application for discharge review was received on 20041227.  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 20050218.  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

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My particular issue is not that my discharge was inequitable or improper.  I got exactly what I deserved.  I was wrong and made a grave mistake I have regretted and will always have to live with the error in judgment.  But, shortly after my discharge, I realized that though I can’t ever go back and re-live that terrible time in my life, I could do something about the future.  I chose the later and have been drug-free for over six and one-half years.  After my discharge in 1997, I started working for a small construction company but no benefits were provided.  For the next few years, I worked at two or three small construction companies while living at home with my parents while staying drug-free all the while.  It was also during that time I also landed a great job with a major company providing general maintenance to a major fossil burning steam electric company.  I have been voluntarily; unexpectedly drug tested on several occasions during my employment the past three years and passed the test each time.  Getting the job with this great company was a wonderful occurrence in my life, but even greater than that was meeting a wonderful woman in 2001 and marrying her shortly thereafter.  We now have one child, a beautiful and vibrant boy, and currently 13+ months old.  He is absolutely the joy and future of our lives (see attached pictures).

I wish to upgrade my discharge to General under Honorable Conditions with no exceptions.  This change would provide opportunities for me to gain employment with those employers who only seek after only the best.  One such opportunity exists currently and I desire, more than anything, to update and clear my record.  This job would mean better pay and better benefits to provide and support my family.  Thanks so much and I will forever be indebted to the board for this review and consideration.

E_ D_ H_ (Applicant)
Date  2004/11/04”

Documentation

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

Six pictures
Wage and Earnings statement, dated November 24, 2004
State of Texas Marriage License, dated April 19, 2002
Birth Record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	950914 - 951009	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  951010		Date of Discharge:  960702

Length of Service (years, months, days):

	Active:    00  08  23
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

*No Marks Found

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:

960403:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 960327, tested positive for THC.

960511:	Drug and Alcohol Abuse Report: Marijuana abuse, 4-7 times per week, ashore off duty.  Unit sweep urinalysis on 960325.  Physician found the Applicant not dependent and recommended separation.  Commanding Officer recommended separation.  Comments: AR E_ H_ tested positive for THC during command unit urinalysis.  SVCMBR freely admitted to drug use and shows no potential for future naval service.  SVCMBR was processed for separation from service.

960516:	Medical evaluation for drug/alcohol abuse found the Applicant not to be drug/alcohol dependent.  [Extracted from Commanding Officer message dated 960518]  

960518:	NJP for violation of UCMJ, Article 112A: Use of a controlled substance.
	Award: Forfeiture of $437 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

960518:	Applicant notified of being considered for an administrative separation by reason of misconduct due to drug abuse.  If separation is approved, the description of service may be Other Than Honorable.

960518:	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.

960518:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

960613:	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 19960702 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:  There is credible evidence in the record that the Applicant used illegal drugs.  The Applicant’s service record was marred by award of NJP for illegal drug use.  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 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 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.   

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