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

ex-RMSN, USN
Docket No. ND01-00195

Applicant’s Request

The application for discharge review, received 001205, 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 discharge review before a traveling panel closest to Austin, TX.  The applicant listed Civilian Counsel 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) does not travel, all hearing are held in the Washington, DC Area.  The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010510.  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.  My waiver of military counsel and separation board was done pursuant to advice from my command and under duress from current circumstances.

2.  Because I unwittingly waived counsel and a separation board, the one alleged act of misconduct upon which the separation was based has never been investigated.

3.  Considering my record of service, a UOTHC discharge is too severe a penalty for the single alleged act of misconduct.

4.  The UOTHC discharge has prevented me from obtaining meaningful employment or financial assistance to attend schooling in order to improve my employability. 

Documentation

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

Letter from Counsel (6pgs)
Copy of DD Form 214
Appeal of NJP
Notification of Admin Board Procedure Proposed Action (3pgs)
Petition of Dissolution of Marriage (14pgs)
Certificate of Graduation (Basic Boat Coxswain)
Second Class Swimmer Qualification
Enlisted Performance Evaluation Reports (10pgs)
Copy from Medical Record
Copy of Administrative Remarks (BUDS Disenrollment)
Evaluation Report & Counseling Record (4pgs)
ESWS Administrative Remarks
Service Related Documents (55pgs) 

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	920710 - 920720	COG

Period of Service Under Review:

Date of Enlistment:  920721		Date of Discharge:  970318

Length of Service (years, months, days):

	Active:    04  07  27
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (17 months extension)

Education Level:  12			AFQT:  77

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (6)	Behavior:  3.80 (6)		OTA:  3.80	4.0 Evals
Performance:  3.00 (1)	Behavior:  1.00 (1)		OTA:  2.29	5.0 Evals

Military Decorations:  None

Unit/Campaign/Service Awards:  ESWS, GCM, NDSM, SASM, NAVY"E"RIBBON, SSDR 

Days of Unauthorized Absence:  None 

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:

930618:	NJP for violation of UCMJ, Article 86: Failing to go or leaving place of duty.
	Award:  Forfeiture of $150.00 per month for 1 month, restriction and extra duty for 3 days.  No indication of appeal in the record.

970130:	NJP for violation of UCMJ, Article 117: Provoking Speech or Gestures.
	Award:  Restriction and extra duty for 3 days, reduction to E-3.  Appealed.  Appeal granted  [Extracted from Case file].

970307:	NJP for violation of UCMJ, Article 112a: Wrongful use and possession of a controlled substance (LSD).
	Award:  No adjudication found in record.  [Extracted from Evaluation Report & Counseling Record dtd 970318 in case file].

970307:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by one non-judicial punishment of wrongful use of a controlled substance (LSD) [Extracted from case file].

NO DISCHARGE PACKAGE AVAILABLE

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 970318 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 applicant’s issues 1 and 2, the Board determined that to permit relief for these issues, an error or injustice must be found to have existed during the period of enlistment under review.   There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  Because of this, the NDRB has to assume regularity in government affairs.  The Board could find no rights violations nor any basis for relief concerning these issues.

In response to applicant’s issue 3, the applicant implies that a permissive doctrine exists whereby one in the military is allowed a "single alleged act of misconduct".  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  The Board will not grant relief on the basis of this issue.

In response to applicant’s issue 4, the Board has no obligation to change the applicant’s discharge in order to allow him to obtain better employment or to allow him to go back to school.  This is not an issue for which the Board will grant relief.

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 the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (E).  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 post-service documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is strongly encouraged to continue with his pursuits and to apply for a personal appearance hearing.  The application must be received within 15-years from the date of discharge. 

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 11 Dec 97, Article 3630620  SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT ‑  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