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

FOR OFFICIAL USE ONLY

ex-PHAN, USN
Docket No. ND06-00790

Applicant’s Request

The application for discharge review was received on 20060502.  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 20070315.  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 - ISSUES AND DOCUMENTATION

Decisional Issues

	Propriety: Pre-service conduct considered.

Equity: Isolated incident.

Documentation

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

Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19990720 - 19991024	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19991025		Date of Discharge:  20030328

Length of Service (years, months, days):

	Active:    03  05  04
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4 (12-month extension)

Education Level:  12				AFQT:  42

Highest Rate:  PHAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.3 (3)			Behavior:  2.3 (3)		OTA:  2.89

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Meritorious Unit Commendation, First Good Conduct Award for period ending 02Oct24, National Defense Service Medal, Sea Service Deployment Ribbon.

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events: 

990720:	Pre-service waiver for one non-minor misdemeanor (possession of drug paraphernalia) granted.

021005:	Civil Conviction:  Circuit Court of Duval County, FL for violation of capias failure to pay/failure to appear previous charge of possession of cannabis.
	Sentence:  Pled no contest, adjudication of guilt withheld.  Fine $153.00, unsupervised probation 1 day.

030328:	DD Form 214:  Applicant discharged with a general (under honorable conditions) by reason of misconduct due to drug abuse, authority:  MILPERSMAN 1910-146.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030328 by reason of misconduct due to drug abuse (A and B) with a service characterization of general (under 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).

Propriety – Pre-service conduct considered: The Applicant contends that her discharge is improper because her “preservice civilian conviction was used in [her] discharge proceedings.”  Per regulations, commanders may use pre-service activities when contemplating a retention decision; however, such activities may not be used when characterizing service.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that her pre-service civilian conviction was improperly used.  In the absence of contradictory evidence, the Board concluded that the government’s agents acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s Naval service and subsequent administrative processing.  The Board advises the Applicant that she bears the burden of establishing her issues through the presentation of substantial and credible evidence.    The Applicant’s statements alone do not provide sufficient basis to grant relief.  Relief denied.

Equity – Isolated incident: The Applicant requests an upgrade contending that her discharge was “based on one isolated incident in 41 months of 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.  The Applicant pled no contest to capias failure to pay/failure to appear previous charge of possession of cannabis.  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 with a general (under 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.

The Applicant is advised that 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 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.  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, possession, etc. 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 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