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

Docket No. ND00-00756

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

 ex-MSSA, USN
Docket No. ND00-00756

Applicant’s Request

The application for discharge review, received 000526, requested that the characterization of service on the discharge be changed to general/under honorable conditions and the reason for the discharge be changed to convience to the govt.  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 001214.  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, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Request that my discharge be upgraded to general under honorable conditions and the narrative reason be changed to convience to the government.  This was harsh punishment considering the regulations that I broke.  They did not consider my extinguishing circumstances.  I served a previous enlistment before I re-enlisted and served honorable.  I should have been issued a DD 214 for that service but was not.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USN			890328 - 930227	HON
	Inactive: USNR (DEP)	890228 - 890327	COG

Period of Service Under Review:

Date of Enlistment:  930228		Date of Discharge:  941205

Length of Service (years, months, days):

	Active:    01  09  08
	Inactive:  None

Age at Entry:  29			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (1)	Behavior:  3.60 (1)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM with 2 Stars, KLM, SSDR (2), CGOR, NUC

Days of Unauthorized Absence:  23 

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

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

Chronological Listing of Significant Service Events:

930228:	Applicant re-enlisted for 4 years.

931207:	NAVDRUGLAB, Norfolk, VA reports applicant's urine sample received 931201 tested positive for cocaine.

940218:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0800, 11Jan94 to 1315, 21Jan94 (10 days/surrendered), violation of UCMJ Article 112A: Wrongful use of a controlled substance, to wit: cocaine on 30Oct93.
	Award: Forfeiture of $466 per month for 2 months, restriction and extra duty for 45 days, reduction to MSSA.  Appealed 940301.  Appeal denied 940401.

940405:	Drug and Alcohol Abuse Report: Cocaine abuse, abuse denied, ashore off duty, random urinalysis 931201.  Physician found applicant not dependent and recommended separate not via VA hospital.  Commanding officer recommended separate via VA hospital.  Comments: MSSN (applicant) is a 30 y/o male with 04 years of continuous active duty service at time of incident.  He as a command referral after a positive urinalysis for cocaine on 01 Dec 93.  Member was evaluated by the Medical Officer and found to be not dependent.

940511:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Commanding Officer's non-judicial punishment of 18 February 1994 and by service record entries.

940728:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

940803:	Applicant to unauthorized absence 0730, 3Aug94.

940805:	Applicant from unauthorized absence 0730, 5Aug94 (2 days/surrendered).

940927:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

941004:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). 

941004:	Applicant to unauthorized absence 1930, 4Oct94.

941015:	Applicant from unauthorized absence 1500, 15Oct94 (10 days/surrendered).

941115:	Applicant to unauthorized absence 1500, 15Nov94.

941114:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

941117:	Applicant from unauthorized absence 0700, 17Nov94 (1 day/surrendered).

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 941205 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 response to the applicant’s issue, the Board found that the discharge given the applicant was fair and equitable.  The Navy has a ‘zero tolerance’ policy toward drug abusers.  The NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted.  The summary of service clearly documents that drug abuse was the reason the applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the applicant was discharged.  To change the Narrative Reason Separation would be inappropriate.  The Board has no authority to issue the applicant a DD Form 214 for his first enlistment.  Relief denied.

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 the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the 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 view DoD Directive 1332.28 and other Decisional Documents by going online at "afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  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/A9405/A9219/A9439