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

FOR OFFICIAL USE ONLY

ex-AKAN, USNR
Docket No. ND05-00870

Applicant’s Request

The application for discharge review was received on 20050426.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant designated the American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. Metropolitan area on 20060306. 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 3 to 2 that the character of the discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues extracted from the American Legion Statement. These issues supersede DD Form 293 filed April 26, 2005. 

The Former member opines that his UOTHC is too harsh when viewed in light of the length and quality of his overall service record”.

The Applicant requests that the Board consider provisions of SECNAVINST. 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct in assessing the merits of his application.

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Letter from Applicant to American Legion, dtd April 14, 2005
Letter from Applicant to American Legion, dtd April 13, 2005
PROLITERACY AMERICA Certificate of Completion for Volunteer Tutor Training dtd, April 07, 2005
Drug screen by L.I.F.E. Concepts dtd May 07, 2005
Associate of Arts Degree from Saint Leo University, dtd November 1st 2002
Bachelor of Science Degree from Saint Leo University, dtd August st 2004 
Certificate of membership from Kappa Alpha Psi Fraternity, dtd November 19, 2004 
Letter from Applicant dtd March 30 2006
Character reference letter from M_ D. M_, Academic Advisor, Saint Leo University, dtd August 3, 2004 
Character reference letter from M_ J. S_, PhD., Regional Coordinator/Adjunct Faculty, Saint Leo University, dtd April 16,2004 
PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19910921 - 19920403	COG
	Active:   USN	19920404 - 19940317	HON

Period of Service Under Review:

Date of Enlistment:  19940318		Date of Discharge:  19990920

Length of Service (years, months, days):

	Active:    05  06  02  (Excludes lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  1 day
	Confinement:		  None

Age at Entry:  22

Years Contracted:  6 (12 month extension)

Education Level:  12				AFQT:  41

Highest Rate:  AK3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.8 (1)		Behavior:  4.0 (1)	OTA:  4.00	4.0 evals
Performance:  3.0 (5)		Behavior:  3.6 (5)	OTA:  3.11	5.0 evals

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Meritorious Unit Commendation, Navy “E” Ribbon, First Good Conduct Award for period ending 96Jan01, National Defense Service Medal, Southwest Asia Service Medal, Sea Service Deployment Ribbon, Armed Forces Service Medal, United Nations Service Medal, Flag Letter of Commendation

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events: 

940318:	Reenlisted this date for a term of 6 years.

981007:	Applicant extended enlistment 12 months.

981217:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 981209, tested positive for THC.

990104:	Applicant to unauthorized absence at 0700 on 990104.

990106:	Applicant from unauthorized absence at 0600 on 990106 (1 days/surrendered).

990111:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
	Specification: In that Aviation Storekeeper Petty Officer Third Class F_ J. R_ (Applicant) Jr., U.S. Naval Reserve, Naval Air Station Oceana, Virginia Beach, Virginia, on active duty, did, on or about 30 November 1998, wrongfully use marijuana, a schedule I controlled substance.
	Award:  Forfeiture of $637 per month for 2 months, restriction for 30 days, reduction to E-3.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

990204:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse.

990209:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

990412:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due drug abuse, that such misconduct warranted separation, and recommended discharge under other than honorable conditions but suspended for 6 months.

990728:	Commanding Officer, Naval Air Station Oceana recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “AKAA R_ (Applicant) tested positive for marijuana after participating in a urinalysis on 30 Nov 98.  He admitted his guilt at NJP and later elected his right to an administrative board.  As evidence by enclosure (1), the board found misconduct and recommended separation under Other Than Honorable conditions (suspended for six months).  The defense through enclosure (2) concurs with the board’s recommendation and requests a favorable endorsement.  After deliberating with the recommendation of the board and the request made by the defense, I have decided that his case does not warrant a suspension.  Therefore, I strongly recommend separation immediately under Other Than Honorable conditions.”

990907:	CNPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010209:	NDRB documentary record review Docket Number ND00-00876 conducted.  Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990920 by reason of misconduct due to drug abuse (A and B) with a service characterization of under other than honorable conditions.  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).  

The Applicant introduced 2 decisional issues based on equity for consideration by the Board. The Applicant states that his “UOTHC (Under Other Than Honorable Conditions) is too harsh when viewed in light of his overall service record”. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. The NDRB advises the Applicant that an administrative board’s decisions are only recommendations to the command; a Commanding officer may accept or as in the Applicant’s case reject that recommendation. The Board found that there was credible evidence in the record that the Applicant used illegal drugs. 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. 

The Applicant requests that the Board consider provisions of SECNAVINST. 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct in assessing the merits of his application. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered. The Applicant provided several additional documents at the personal appearance hearing for the Board’s review. Certificate of Completion from PROLITERACY AMERICA (Volunteer Tutor Training), Drug screen by L.I.F.E. Concepts dtd 20050307, Associate of Arts Degree from Saint Leo University, Bachelor of Science Degree from Saint Leo University, Certificate of membership from Kappa Alpha Psi Fraternity, and a letter from Applicant dtd 20060330.The Applicant also provided character reference letters from M_ D. M_, Academic Advisor, Saint Leo University and M_ J. S_, PhD., Regional Coordinator/Adjunct Faculty, Saint Leo University. The board appreciates the Applicant’s post service accomplishments, however the board determined that the documentation provided was not sufficient to mitigate the misconduct that resulted in his characterization of discharge. Therefore, no relief will be granted.  

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until 26 March 2000, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a (wrongful use of a controlled substance)

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