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

FOR OFFICIAL USE ONLY

ex-SK2, USN
Docket No. ND06-00618

Applicant’s Request

The application for discharge review was received on 20060404.  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 designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070110.  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 characterization of the discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

The NDRB did note administrative errors on the original DD Form 214.  Block 18, Remarks, should contain the following statement:  “CONTINUOUS HONORABLE ACTIVE DUTY FROM 930317 UNTIL 000308” and Block 29, Dates of Time Lost During This Period, should read:  “TL: 20SEP02-02OCT02.”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

	Equity: Prior good service

	Equity: Post service

Documentation

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

Applicant’s DD Form 214 (Service 7)
American Legion Statement dtd July 12, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive: USAR	198306XX - 198308XX	
		USNR (DEP)	19860917 - 19861109	COG
	Active:   USN	19861110 - 19901109	HON
		USNR	19910129 - 19921025	
		USNR	19921026 - 19930316	HON
		USN	19930317 - 20000308	HON

Period of Service Under Review:

Date of Enlistment:  20000309		Date of Discharge:  20021018

Length of Service (years, months, days):

	Active:    02  07  10  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  12 days
	Confinement:		  None

Age at Entry:  34

Years Contracted:  3

Education Level:  13				AFQT:  67

Highest Rate:  SK1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.8 (4)		Behavior:  3.0 (4)		OTA:  3.29

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal(2)/ Sea Service Deployment Ribbon(6)/Navy Achievement Medal(3)/Navy “E” Ribbon(3)/Kuwait Liberation Medal (Kuwait)/Armed Forces Service Medal/Meritorious Unit Commendation(2)/Southwest Asia Service Medal/Humanitarian Service Achievement Medal/Joint Meritorious Unit Award/ Joint Meritorious Unit Commendation/ Joint Service Achievement Medal/Fifth Good Conduct Medal.

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: 

000309:	Reenlisted this date for a term of 3 years.

020801:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 020726, tested positive for cocaine.

020808:	NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substance.
	Award:  Forfeiture of $1249.00 per month for 2 months, reduction to E-5.  Forfeiture and reduction suspended for 6 months.  No indication of appeal in the record.

020917:	Forfeiture of pay and reduction in pay grade awarded at NJP on 020808 vacated due to continued misconduct – absent without leave on 020906.

020917:	Applicant did not desire VA treatment.

021007:	NJP for violation of UCMJ, Article 86: Absence without leave (desertion) from 020920 to 021002.
	Award:  Reduction to E-4.  Reduction suspended for 6 months.  No indication of appeal in the record.  [Extracted from Commanding Officer’s letter dated 021009.]

021007:	Administrative remarks: Applicant found in violation of the UCMJ Article 86, absence without leave.  Applicant briefed on rights relating to the punishment imposed and the appeal process.  Applicant informed of further violation of Article 86 or other misconduct may result in punitive action.

021007:	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 and misconduct due to pattern of misconduct.

021007:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

021009:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to drug abuse.

021010:	CNPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 20021018 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 Board presumed regularity in the conduct of governmental affairs (E).

Equity – Prior good service:  Applicable regulations require that a member’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  However, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service.  The incident need not result in formal punishment to be properly used to characterize a Sailor’s service.  There is credible evidence in the record that the Applicant used illegal drugs.  The Applicant was awarded nonjudicial punishment (NJP) for a violation of UCMJ Article 112a, wrongful drug use.  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 Applicant was properly notified, processed and discharged under other than honorable conditions by reason of misconduct due to drug abuse.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the U.S. Navy.  Therefore, the Board concluded that the Applicant’s discharge was proper and equitable as issued.  Relief denied.

Equity – Post service: The following is provided for the Applicant’s edification.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question, but the Board found no such impropriety or inequity.  While 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 service, the Board 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.  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 continuing educational pursuits, verifiable employment records, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant did not provide any post-service documentation for consideration.  Relief on this basis is 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 post-service accomplishments or any other evidence related to the 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.  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 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.

E.  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