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

FOR OFFICIAL USE ONLY

 ex-ATAN, USN 
Docket No. ND05-00828

Applicant’s Request

The application for discharge review was received on 20050413.  The Applicant requests his 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 a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050811.  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:

“My discharge was inequitable based solely on one incident in 39 months of service with no adverse action.  The reason for requesting this change is because I now have a child.  I would really love to provide a good life for her and further my education by receiving my MGI Bill.”

Documentation

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

Letter from Applicant dtd April 6, 2005 (2 pgs)
Reference Letter from Mr. J__ R. L__
Reference Letter from M___ T. T___ dtd March 1, 2005
Reference Letter from S__ A. B___ dtd April 3, 2005 (unsigned)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000110 – 000203	ELS
	Inactive: USNR (DEP)	001211 – 001219	COG

Period of Service Under Review:

Date of Enlistment:  001220		Date of Discharge:  040526

Length of Service (years, months, days):

	Active:    03 05 07
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (3 months extension)

Education Level:  11			AFQT:  58

Highest Rate:  AT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.66 (3)		Behavior:  3.00 (3)		OTA:  3.33

Military Decorations:  None

Unit/Campaign/Service Awards:  Battle “E” Ribbon, National Defense Service Medal

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:

001211:	Waiver granted for prior DEP attrition (drugs).
 
040423:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 040419, tested positive for THC.

040428:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance on 040414.
Award:  Reduction to E-3.  No indication of appeal in the record.

040512:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to drug abuse.

040512:	Applicant advised of rights and having elected not to consult with qualified counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040512:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

040518:	COMNAVAIRLANT Norfolk, VA 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 20040526 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).

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 thorough review of Applicant’s records 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.  A 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.  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.  Nonjudicial punishment (NJP) for a violation of UCMJ Article 112a (wrongful use of a controlled substance) marred the Applicant’s service record, 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 Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  The Applicant’s issue is without merit.  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.  The Applicant stated, “I HAVE NOT used nor do I intend to ever again use illicit drugs”.  He also provided three letters documenting his expertise and reliability while on active duty.  Based on insufficient evidence and lack of sufficient post service factors, 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.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, 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