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

FOR OFFICIAL USE ONLY

 ex-SR, USN
Docket No. ND05-01053

Applicant’s Request

The application for discharge review was received on 20050606.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, DC area.  The Applicant did not respond.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051117.  After a thorough review of the available 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 by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“There were no programs and/or interdiction policy at the time I was young-inexperienced-I made a bad mistake.  I am a Gulf-War Veteran and I am requesting to have my DD214 cleared and upgraded to a Honorable condition.  I have two wonderful children and I am seeking employment and really need the change.”

The American Legion submitted no issues for consideration.

Documentation

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

Applicant’s DD Form 214
Applicant’s Chronological Employment History, undtd
Letter from Applicant dtd July 1, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19870716 – 19870908		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19870909		Date of Discharge:  19910618

Length of Service (years, months, days):

	Active:    03  09  10  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  39

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.2 (4) 	Behavior:  2.8 (4) 		OTA:  3.40 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbon (3), Armed Forces Expeditionary Medal (2), National Defense Service Medal, Southwest Asia Service Medal, Meritorious Unit Commendation, Navy Unit Commendation

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Drug abuse (Use), authority: MILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events: 

870914:	Applicant briefed on Navy's policy on drug and alcohol abuse.

890202:	NJP for violation of UCMJ, Article 86: Unauthorized absence on 890116.
Award:  Forfeiture of $50 per month for 1 month.  No indication of appeal in the record.

890210:	Retention Warning:  Advised of deficiency (CO’s NJP held 890202 for violation of the UCMJ, Article 86, unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies and issued discharge warning.

891026:	Drug and Alcohol Abuse Report:  Marijuana abuse detected by random urinalysis.  Medical Officer determined Applicant not dependent.
 
891026:	Retention Warning:  Advised of deficiency (Substandard performance in that you have been identified as a drug abuser involved in your first drug related incident), notified of corrective actions and assistance available, advised of consequences of further deficiencies and issued discharge warning.

891026:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
Award:  Forfeiture of $349 per month for 2 months, restriction to ship and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

8911xx:	Applicant completed Level I treatment.  [Date estimated, extracted from Commanding Officer’s message of 910601]

910507:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
Award:  Forfeiture of $422 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

910519:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse. [Extracted from Commanding Officer’s message of 910601]

910519:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.  [Extracted from Commanding Officer’s message of 910601]

910528:	Medical Officer’s Evaluation: Applicant not alcohol/drug dependent.  SNM not recommended for further service.  Treatment is not indicated.

910601:	Commanding Officer, USS FLINT recommended discharge by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “SA K_(Applicant) was formally evaluated as a drug abuser in Oct 89.  He was assigned to and successfully completed program level regimen I including NADSAP.  Member is a capable seaman with average performance but in view of his repeated substance abuse and his admitted disregard of laws and regulation concerning substance abuse, he has no further potential for future naval service.”

910607:	BUPERS directed the Applicant's under other than honorable conditions discharge by reason of misconduct drug abuse.

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910618 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

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 was marred by three nonjudicial punishment proceedings (NJP) for violations of Articles 86 and 112a of the UCMJ.  The Applicant also received two retention warnings; one for unauthorized absence and one for drug abuse.  Subsequent to the Applicant’s second NJP, for violation of Article 112a, the Applicant stood NJP a third time for his second violation of Article 112a of the UCMJ.  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.  Despite the Applicant’s contention that “programs” were not available at the time of his enlistment and that he was “young-inexperienced,” the Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug use.  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.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  Relief would be inappropriate.

The following is provided for the edification of the Applicant.  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 remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560A), Change 11, effective 
14 Jun 90 until 14 Aug 91, 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 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.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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

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