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

FOR OFFICIAL USE ONLY

ex-AA, USNR
Docket No. ND06-00976

Applicant’s Request

The application for discharge review was received on 20060718.  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 20070523.  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.

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PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity – Quality of 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 (Member 4)
Four pages from Applicant’s service record
Certificate of Athletics, Volunteer Clock Operator, dated April 15, 2005
Certificate of Athletics, Outstanding Service, Clock Operator, dated March 1, 2004
Certificate of Athletics, Bland Softball Championship, dated October 1, 2002
Certificate of Athletics, Outstanding Service – Basketball, dated March 15, 2003
Certificate of Athletics, Outstanding Service Scorekeeper, dated October 3, 2003
Certificate of Completion, Bland Correctional Center, dated February 13, 2003
Certificate of Completion, Virginia Department of Corrections, Substance Abuse Treatment and Alcohol Rehabilitation, dated June 1, 2000
Certificate of Participation, Relapse Prevention Group, Virginia Department of Corrections, dated February 16, 2006
Certificate of Completion, Productive Citizenship, Harrisonburg Men’s Diversion Center, dated November 22, 2005
Certificate of Participation, Substance Abuse Education Phase I, Botetourt Correctional Unit #25, dated October 27, 1999
Certificate of Participation, Substance Abuse Education Phase II, Botetourt Correctional Unit #25, dated February 25, 2000
Certificate of Completion, Harrisonburg Men’s Diversion Center, dated March 9, 2006
Certificate of Attendance, Recovery Skills Group, dated November 17, 2005
Certificate of completion, Commonwealth of Virginia, dated April 26, 2004
Department of Correctional Education, Vocational Education Transcript (8 pages)
Job/Character Reference letter from D_ V. C_, Supervisor at B.C.C., dated August 12, 2005
Job/Character Reference letter from S_ S. V_, Senior Water Plant Operator, dated September 12, 2005
Certificate of Completion, Commonwealth of Virginia, Water/Wastewater, dated September 30, 2004
Diploma, WWO Tutor, dated September 30, 2004
Roanoke City Public Schools transcript (5 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR	19920508 – 19920526
	Active:    None
Period of Service Under Review:

Date of Enlistment:  19920527		Date of Discharge:  19940225

Length of Service (years, months, days):

	Active:    01  08  30
	Inactive:  00  00  23  

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  21

Years Contracted:  8  (2 years active)

Education Level:  12				AFQT:  50

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.8 (2)			Behavior:  3.6 (2)		OTA:  3.60

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Meritorious Unit Commendation, National Defense Service Medal, Southwest Asia Service Medal (1BS), Sea Service Deployment Ribbon

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events: 

920527:	Commenced active duty for a period of 2 years.

930414:	NJP for violation of UCMJ, Article 128: Assault on 930305.
	Award:  Forfeiture of $150.00 per month for 2 months, restriction and extra duty for 30 days, reduction to E-2.  Forfeiture of $150.00 for 1 month, restriction and extra duty for 15 days and reduction suspended for 6 months.  No indication of appeal in the record.

930414:	Retention Warning:  Advised of deficiency (Your commission of assault.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

931104:	NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 931027, tested positive for THC.

931130:	NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana on 9310.
	Award:  Forfeiture of $456.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

931201:	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 commission of a serious offense and misconduct due to drug abuse.

931208:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

940207:	Drug and Alcohol Abuse Report:  Marijuana abuse, ashore off duty.  Unit sweep urinalysis on 931016.  CAAC recommended separation. Physician found Applicant not dependent and recommended separation.  Commanding Officer recommended separation.  Comments:  22 year old male with one and a half years of active naval service.  Identified by unit sweep for use of a controlled substance.  Member was evaluated by a medical officer and determined to be not dependent.  Currently being processed for administrative separation.

940207:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense and misconduct due to drug abuse, that such misconduct warranted separation, and recommended discharge with a general (under honorable conditions).

940225:	DD214:  Applicant discharged.

940314:	Commanding Officer notified BUPERS of the Applicant’s discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse.

940421:	BUPERS notified USS THEODORE ROOSEVELT Applicant did not qualify for discharge under MILPERSMAN 3610220.  Per MPM 3610220.1A(15), CHNAVPERS (PERS 832) was separation authority.  The above is intended to assist you in future processing.  No further action required in this case.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940225 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).

The Applicant requests upgrade of his discharge because he served “well” before his drug use.  Despite a servicemember’s record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.  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.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.  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.

The Applicant provided evidence of post-service accomplishments in support of his request for upgrade.  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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was not sufficient to mitigate the conduct, which precipitated the discharge.  Relief denied.

The NDRB did note a minor error in the Applicant’s separation processing.  The record indicates that separation was directed by the Commanding Officer then forwarded to BUPERS.  Instead the command should have forwarded the package to BUPERS and discharged Applicant after BUPERS directed the discharge.  Nevertheless, the NDRB is convinced that this procedural error was not prejudicial to the Applicant and therefore affords him no relief.  There is little doubt to the NDRB that the discharge would have remained the same if the error had not been made and thus relief based upon this error 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 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), Change 5/93, effective 
05 Mar 93 until 21 Jul 94, 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, Articles 128 (assault) and 112a (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.

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