Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. ND99-00549

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

 ex-SN, USN
Docket No. ND99-00549

Applicant’s Request

The application for discharge review, received 990311, requested that the characterization of service on the discharge be changed to Honorable or General/under Honorable conditions.  The applicant requested a personal appearance hearing.  The applicant listed the American Legion as his representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991221.  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/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Drug related incident that led to my discharge was an isolated incident as indicated by both my prior service and the attached documents.

Documentation

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

Statement from the applicant dated March 4, 1999
Copy of DD Form 214 (Member 1)
Copy of Boise Police Department police record check dated February 16, 1999
Letter from the Salvation Army re: volunteer work, undated
Copy of college transcript dated February 17, 1999

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	920528 - 921108	COG

Period of Service Under Review:

Date of Enlistment:  921109		Date of Discharge:  951206

Length of Service (years, months, days):

	Active:    03  00  28
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  70

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.90 (4)	Behavior:  3.64 (5)		OTA:  3.76

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NDSM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events:

950718:	Psychiatric Evaluation: Referred by NSHS for "erratic behavior, sleepwalking, possible drug use.  Assessment: Currently not suicidal or homicidal and shows no signs of major depression.  There is no current evidence of drug abuse.  The alleged sleepwalking/erratic behavior can be explained as a reaction to the stress of his job as adjutant, as well as the additional stress he places on himself in seeking perfection.  Diagnosis: Occupational problems.

950825:	Drug and Alcohol Abuse Report: Lomotil abuse/possession, July 29, 1995, one to three times per week, ashore off duty, military police.  CAAC recommended separate via VA hospital.  Physician determined applicant was dependent and recommended Level III treatment.  Commanding officer recommended separate via VA hospital.  Disciplinary history: Pre-service: Marijuana usage x 10, communicating a bomb threat, 1991.  Active duty: Cited for DUI, but charges were subsequently dropped.

950828:	Applicant diagnosed as lomotil dependent.  Recommendation: Attend Level III drug treatment, subject to command and court-martial disposition.  Command process applicant for administrative separation.  Command DAPA co-ordinate compliance in applicant attending 3 narcotics Anonymous meetings a week until treatment begins or discharge.

Discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 951206 under Other Than Honorable conditions in lieu of a trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

In the applicant’s issue 1, the Board determined this issue is without merit.  The applicant claims his drug incident was an isolated incident, although, he admits in his letter to the DRB, dated 4MAR99, to using an illegal drug he obtained from Mexico, until he was caught.  Using illegal drugs is a serious violation of the UCMJ, punishable by court-martial.  The applicant elected separation with an Other Than Honorable discharge in lieu of trial by court-martial.  He admitted to the drug abuse charges against him.  Relief denied.

The following is provided for the applicant’s edification.  There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life, subsequent to leaving military service.  The Board reviews the propriety (did the Navy follow its own rules in processing the applicant for discharge) and equity (did the applicant receive a discharge characterization in keeping with Navy guidance or was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge.  This applicant’s discharge was proper and equitable.  Additionally, the NDRB is authorized to award clemency for post-service factors (what has the applicant done since discharge to become a contributing member of his/her community and to society in general).  Those factors include but are not limited to the following:  Evidence of continuing educational pursuits (transcripts, diploma, degree or vocational-technical certificates), a verifiable employment history (letter of recommendation from employer), documentation of community service (letter from activity/community group), certificate of non-involvement with civil authorities (police records check) and proof of not using drugs (detoxification certificate).  The applicant has provided some documentation of good character and conduct but not sufficient enough to warrant an upgrade to his discharge.  The applicant is encourage to continue his efforts to establish a reputation of good character.  He is also reminded that he remains eligible for a personal appearance hearing.  Documentation to support any claims of good character are a must.  An application must be received by the NDRB within fifteen years from the date of his discharge or it will be denied.  It is advisable to have legal representation at the hearing.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 2 Oct 96, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURT‑MARTIAL. 

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article [e.g., 86, unauthorized absence for a period more than 30 days] upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

C.  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.  

D.  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.

E.  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 St 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:  A7400/A9317/A9235/A9217/A9237/A9439/A9221