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

Docket No. ND00-01072

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

ex-AO3, USNR
Docket No. ND00-01072

Applicant’s Request

The application for discharge review, received 000919, 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 010301.  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.  My discharge was inequitable because it was based on one isolated incident in 67 months of outstanding performance of service, as my enlisted service record indicate.  Please review my enlisted service records which contain my enlisted performance evaluations, Letter of Accomodation, Sea Service Deployment Ribbon, Navy "E" Ribbon and Good Conduct Medal.

Documentation

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

Copy of DD Form 214
26 pages from applicant's service record
Letter from applicant dated January 15, 2001
Copy of Computer Learning Center, Inc. transcript
Copy performance evaluation dated April 24, 2000
Character reference from applicant's mother, dated January 4, 2001
Character reference dated November 6, 2000
Character reference from applicant's wife dated December 14, 2000
Character/job reference dated October 19, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  811124		Date of Discharge:  870807

Length of Service (years, months, days):

	Active:    05  08  10
	Inactive:  00  00  24

Age at Entry:  20			Years Contracted:  8

Education Level:  11			AFQT:  78

Highest Rate:  AO2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.85 (8)	Behavior:  3.74 (10)		OTA:  3.54

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NER, GCM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

811218:	Applicant ordered to active duty for 36 months under the Active Mariner Program.

820222:	Naval Speedletter: Disposition recommendation: Pre-service use of cocaine 1 time (Dec81), marijuana 1 time (Dec81).  Not drug dependent.  No rehabilitation required.  Applicant revealed his fraudulent enlistment during an interview with the command's legal investigator.  Despite applicant's fraudulent enlistment, further processing in accordance with BUPERINST 1910.26A is not considered in the best interest of the naval service.  Written warning has been made a part of applicant's service record.

841218:	Applicant extended enlistment 3 months.

850318:	Applicant extended enlistment 10 months.

860118:	Applicant extended enlistment 18 months.

860918:	Applicant extended enlistment 23 months.

870302:	NAVDRUGLAB, San Diego, CA reports applicant's urine sample, received 870223, tested positive for cocaine and marijuana.

870320:	NAVDRUGLAB, San Diego, CA reports applicant's urine sample, received 870316, tested positive for cocaine and marijuana.

870420:	NAVDRUGLAB, San Diego, CA reports applicant's urine sample tested positive for cocaine and marijuana.

870426:	DAPA: Medical evaluation for drug abuse found the applicant not physically dependent, may be psychologically dependent.

870430:	NAVDRUGLAB, San Diego, CA reports applicant's urine sample, received 870423, tested positive for cocaine and marijuana.

870430:	NJP for violation of UCMJ, Article 86: Absent from his place of duty on 1000, 24Apr87 until 0730, 28Apr87 (3 days), violation of UCMJ, Article 112A (2 specs): (1) Wrongfully use cocaine on 23Feb87, (2) Wrongfully use cocaine/marijuana on 16Mar87.
	Award: Forfeiture of $490 per month for 1 month, restriction and extra duty for 45 days, reduction to AO3.  No indication of appeal in the record.

870507:	NAVDRUGLAB, San Diego, CA reports applicant's urine sample, received 870430, tested positive for cocaine and marijuana.

870507:	Drug and Alcohol Abuse Report: Cocaine abuse, 1 to 3 times per week, Feb87 to Apr87, ashore off duty.  Urinalysis inspection Feb87.  Medical officer found applicant dependent and recommended separation.  Separate evaluation found applicant dependent and recommended separate via VA hospital.  Commanding officer recommended separation, second incident.  Comments: AO2 (applicant) exhibits no further potential for future naval service.  NJP, on 87Apr30, violation Article 112A (2 specs), abuse of cocaine and Art 86.  No prior NJP or civil action, member being processed for administrative separation.

870513:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the wrongful use of controlled substances, to wit: cocaine and marijuana.

870514:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

870612:	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.

870701:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). 

870721:	CNMPC 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 870807 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).

The applicant states in issue 1 that his “discharge is inequitable because it was based on one isolated incident.”  The Board found that the applicant tested positive for cocaine and marijuana on 5 separate occasions.  In addition, he was brought to CO’s NJP for 2 specifications of wrongful use of a controlled substance and an additional UA charge.  The Board would not consider this an isolated incident and will not grant relief on the basis of this issue.  Additionally the applicant requests that his service record be reviewed because it contains various positive achievements.  The Board did review the applicant’s record and voted unanimously that the discharge was equitable as given.  No relief will be granted based on this issue. 

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 15560), Change 7/86, effective 
15 Dec 86 until 14 Jun 87, 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/A9455/A9235