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

FOR OFFICIAL USE ONLY

ex-SA, USNR
Docket No. ND06-00460

Applicant’s Request

The application for discharge review was received on 20060210.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061214.  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 General (Under Honorable Conditions) by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Equity:  Isolated incident with mitigating circumstances.
Equity:  Characterization does not consider complete service or statements of supervisors.
Equity:  Post-service accomplishments.

Documentation

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

7 pages from Applicant’s Service Record
Character Reference ltr from LtCol C_ R. P_, USAF Ret., dtd February 1, 2006
Character Reference ltr from S_ L_, dtd February 1, 2006
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19910315		Date of Discharge:  19921231

Length of Service (years, months, days):

	Active:    01  08  25 
	Inactive:  00  00  11

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  31

Years Contracted: 8

Education Level:  GED			AFQT:  63

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (2) 		Behavior:  3.4 (2)		OTA:  3.75

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy Achievement Medal, National Defense Service Medal

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

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

Chronological Listing of Significant Service Events: 

910326:	Commenced active duty for a period of 24 months. 

910327:	Applicant briefed on Navy's policy of drug and alcohol abuse.  

920724:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 920720, tested positive for THC.

920813:	NJP for violation of UCMJ, Article 112a:  Wrongful use of a controlled substance – THC.
	Specification:  Did onboard USS CAPE COD (AD 43), located at Pier 7, Naval Station, San Diego, CA, on or about 920720, wrongfully use a THC, a controlled substance.
Award:  Forfeiture of $440.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Appealed 920818.

920826:	Applicant notified of intended recommendation for discharge with the characterization of service under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by [Applicant’s] drug incident during current enlistment.  

920904:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

920930:	Commander, Destroyer Squadron 13, denied Applicant’s appeal of nonjudicial punishment.	

921110:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that such misconduct warranted separation, and recommended discharge with a under honorable conditions (general).

921202:	Commanding Officer, USS CAPE COD (AS 43) recommended discharge by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “SA E_ (Applicant) has displayed flagrant disregard for representative authority, good order, and discipline.  The presence of this member in an operational environment seriously impairs combat readiness, efficiency, security, and morale.  SA E_ (Applicant) is no longer suited for further military service and is strongly recommended for immediate discharge.”

921216:	BUPERS, directed the Applicant's discharge with a under honorable conditions (general) by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19921231 by reason of misconduct due to drug abuse (A and B) with a service characterization of under honorable conditions (general).  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 contends that his discharge is inequitable because it was the result of an isolated incident under mitigating circumstances and does not consider the Applicant’s complete service.  There is 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.  Therefore, the Board determined the Applicant’s general discharge was warranted considering significant negative aspect of the Applicant’s violation of Article 112a of the UCMJ.  The Applicant’s service was marred by nonjudicial punishment proceedings for violation of Article 112a of the UCMJ, the commission of a serious offense.  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.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief is not warranted.

The Applicant contends that his discharge is inequitable due to his post-service accomplishments.  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 to consider mitigating the misconduct that resulted in the characterization of discharge.  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 additional evidence related to this 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 15560C), effective 15 Aug 91 until 04 Mar 93, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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