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

FOR OFFICIAL USE ONLY

ex-AR, USN
Docket No. ND06-00695

Applicant’s Request

The application for discharge review was received on 20060427.  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 20070208.  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 by reason of misconduct due to drug abuse.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity: Post service

Documentation

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

Employer reference from L_ C. I_, Director, ASU Environmental Health & Safety, dtd August 6, 2004
Email from D_ C_, Administrative Assistant, dtd June 16, 2004
Certificate of appreciation for dedicated service with OPAC and the Department of Economic Security, dtd August 22, 2002
Certificate of appreciation for dedicated service with the Department of Economic Security, dtd August 22, 2002
Pride on the Spot Award, dtd June 22, 2001
Pride on the Spot Award, dtd June 29, 2001
Pride on the Spot Award, dtd July 19, 2001
Pride on the Spot Award, dtd July 26, 2001
Pride on the Spot Award, dtd July 17, 2002
ASU Web Unofficial Transcripts, dtd March 24, 2006 (3 pages)
Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19960726 - 19961009	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19961010		Date of Discharge:  19971015

Length of Service (years, months, days):

	Active:    01  00  06
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4 

Education Level:  12				AFQT:  56

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*		Behavior:  NA*		OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Marksman M-16A1 Ribbon, Armed Forces Expeditionary Medal; Sea Service Deployment Ribbon.

* Not Available

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events: 

970903:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 970825, tested positive for amphetamine, methamphetamine, and THC.

970912:	NJP for violation of UCMJ, Article 112a (2 Specs):  
	Specification 1: On or about 970825, wrongfully use THC.
	Specification 2:  On or about 970825, wrongfully use methamphetamine.
	Award:  Forfeiture of $450.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

970916:	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.

970916:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

970918:	Commanding Officer, Transient Personnel Unit, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

971007:	Commander, Naval Base, San Diego, 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 on 19971015 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 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).

Whenever a member is involved in misconduct due to drug abuse, on the first offense, commanders shall process the member for administrative separation.  Characterization of service under other than honorable conditions 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.    There is clear evidence in the service record that the Applicant used illegal drugs.  Evidence of such misconduct may be used to characterize a member’s discharge under other than honorable conditions.  This conduct, which forms the primary basis for determining the character of service, falls well below that required for an upgrade in characterization of service.  Relief not warranted.

Equity – Post service: 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.  The Applicant submitted unofficial transcripts, an employer references, two certificates of appreciation, and five spot awards for consideration.  The Applicant’s efforts need to be more encompassing to include verifiable employment records, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle.  At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge.  And so, no relief is granted on this basis.

The Applicant implies that his discharge was inequitable because of his youth and immaturity at the time of service.  The Board recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  Most servicemembers begin their service at a relatively young age.  It must be noted that despite their relative youth and immaturity, the vast majority of these members still serve honorably and therefore earn their honorable discharges.  In fairness to those members, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  After a thorough review, the Applicant’s records did not show that he was not responsible for his conduct and therefore should not be held accountable.  The Board concluded that his service was equitably characterized.  Relief on this basis is denied.

The Applicant is advised that there is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits or enhancing employment and educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  Since these issues do not provide a foundation upon which the Board can grant relief, 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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL 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.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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