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

   ex-ENFN, USN
Docket No. ND05-00576

Applicant’s Request

The application for discharge review was received on 20050216.  The Applicant requests the characterization of service received at the time of discharge changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application the Applicant obtained representation by the Disabled American Veterans.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050601.  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.” I want to reenlist in the reserves here in my hometown.  While serving my grades were at top of my class to make Eng/E-4 and also served as Damage Control P.O for our engineering division.”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Under Other Than Honorable Conditions Discharge to that of Honorable.

The FSM served on active service from August 27, 1990 to March 3, 1993at which time he was discharged due to Misconduct due to drug abuse-use.  

The FSM contends the current discharge is improper because he was the top of his class while serving, made ENG / E-4, and served as Damage Control P.O. for the division.  

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper.  The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted.  See, SECNAVIST 5420.174 D, Sect.  407, part 3.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

Under the premises of equitable relief, we believe the Board can change the discharge to reflect a General discharge we leave that to a determination by the Board.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Respectfully,

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):

	Inactive: USNR (DEP)	900514 - 900826	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  900827		Date of Discharge:  930303

Length of Service (years, months, days):

	Active:    02 05 29
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  68

Highest Rate:  EN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.33 (3)		Behavior:  3.26 (3)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, BATTLE”E”

Days of Unauthorized Absence:  None

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:

900514:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver approved.  Applicant briefed on Navy’s policy in drug and alcohol abuse.

900827:	Applicant reported for initial tour of active duty.

900829:	Applicant briefed on Navy's policy on drug and alcohol abuse.

910812:	Applicant reported for duty aboard USS Fairfax County (LST-1193).

911001:	Applicant briefed on Navy's policy of drug and alcohol abuse.

921217:	Psychiatric/Medical Evaluation:  SNM evaluated for dependency on cocaine.  Evidence of cocaine abuse, did not say if there was evidence of chronic use.  Medical officer did diagnose SNM as being psychologically dependent on alcohol and recommends Level III treatment either in-service or through the VA.  

921218:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance (cocaine) on 921115, violation of UCMJ, Article 80: Attempt to purchase a controlled substance (crack cocaine) on 921212.
	Award:  Forfeiture of $482.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

930111:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

930111:	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.  Refused VA alcohol treatment.

930111:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use):  FN B___ was well aware of the Navy’s zero tolerance policy on drug abuse, and chose to disregard that policy as evidenced by testing positive during a random sample urinalysis and again during a probable cause urinalysis.  FN B___ has no potential for further service in the U.S. Navy.  I recommend he be discharged and the characterization of that discharge be other than honorable.          

930115:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

930303:	Applicant discharged.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930303 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:  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 was marred by a nonjudicial punishment proceeding for violations of Articles 80 (attempt to purchase a controlled substance) and 112a (wrongful use of a controlled substance) of the UCMJ.  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.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  Requests for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The Applicant states his discharge was improper because he was the “top of his class and made ENG/E-4 and served as Damage Control P.O.”.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by his nonjudicial punishment (NJP) for illegal drug use and attempt to purchase a controlled substance, thus substantiating the misconduct for which he was separated.  The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged.  Relief denied.

The Applicant’s Disabled American Veterans representative, sites impropriety and inequity referencing SECNAVINST 5420.174D.  Normally, to permit relief, a procedural impropriety or inequity must have existed during the period of enlistment in question.  No impropriety or inequity occurred during the discharge of the Applicant, regulations in place at the time of discharge were followed precisely and no changes have occurred since the time of discharge, which would result in an outcome different than the Applicant received.  Additionally, 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 substance free lifestyle, continuing educational pursuits, employment record, documentation of community service, and certification of non-involvement with civil authorities are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  Relief not warranted.

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), effective 15 Aug 91 until 04 Mar 93, 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