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Docket No. ND99-00394

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

 ex-FR, USN
Docket No. ND99-00394

Applicant’s Request

The application for discharge review, received 990126, requested that the characterization of service on the discharge be changed to Honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991130.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT - Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. Please review the attachments herewith and in support of my request for an upgrade of Character of Service to Honorable.  I would like to be given consideration for re-enlistment in the Navy to better serve my country in a fashion commensurate with the highest expectations set forth by the demands of the Navy.  I can prove my worthiness as a career candidate because I have learned to be assertive and take charge of my own self image, being the best I can be to those who place their trust in me to do the right thing when the occasion requires it.  I regret my poor judgement and have learned from that mistake and am continually striving for perfection in who I am and in whatever I do.  If I can change it and make it better, I will...If it can be fixed, I would like to fix it.  Thank you.

Documentation

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

Copy of DD Form 214
Character reference dated August 19, 1997
Character reference dated July 7, 1997

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	941006 - 950724	COG

Period of Service Under Review:

Date of Enlistment:  950725		Date of Discharge:  960506

Length of Service (years, months, days):

	Active:    00  09  12
	Inactive:  None

Age at Entry:  17			Years Contracted:  4

Education Level:  12			AFQT:  42

Highest Rate:  FR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT – Drug abuse, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

960228:	NJP for violation of UCMJ, Article 112A (2 specs): (1) Wrongfully possessed an unknown quantity of acid (LSD) on 15Feb96, (2) Wrongfully possessed an unknown quantity of acid (LSD)  with intent to distribute on 15Feb96.
	Award:  Forfeiture of $437.40 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

960318:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of Misconduct due to Drug abuse as evidenced by all punishments under the UCMJ in your current enlistment.

960318:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

960405:	Commanding officer recommended discharge under Other Than Honorable conditions by reason of Misconduct due to Drug abuse (Use).

960426:	BUPERS directed the applicant's discharge under Other Than Honorable conditions by reason of Misconduct due to Drug abuse (Use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960506 under Other Than Honorable conditions for Misconduct due to Drug abuse (Use) (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

In the applicant’s issue 1, the Board determined this issue is without merit.  The NDRB is under no obligation to upgrade an applicant’s discharge to allow him/her the opportunity to re-enlist into any branch of the armed services.  The applicant states he has learned from his mistake and the NDRB has no doubt that he has but the Board must look at the equity and propriety of the discharge to determine if an error occurred which would warrant recharacterization of the discharge.  No such error occurred.  Additionally, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge, with verifiable documentation.  Those factors include but are not limited to the following:  Evidence of continuing education, a verifiable employment history, documentation of community service, certification of non-involvement with civil authorities and proof of not using drugs.  The applicant has not submitted any evidence of post-service accomplishments that would warrant upgrading his discharge.  Therefore, relief is denied.

Although relief has been denied, the applicant is encouraged to schedule a personal appearance hearing, after establishing a reputation that would warrant an upgrade to his discharge.  Legal representation is strongly recommended.  Again, document any achievements, in preparation for the personal appearance hearing.

The applicant will remain eligible for a personal appearance hearing, provided an application is received within 15 years from the date of discharge.
 
Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6600/A9241/A9453/A9217/A9221/A0145