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

 ex-YNSN, USN
Docket No. ND01-00337

Applicant’s Request

The application for discharge review, received 010125, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The applicant listed American Legion as his representative on the DD Form 293.

Decision

A personal appearance hearing was conducted in Washington, D.C. on 020326.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned there was no impropriety but determined relief is warranted under equitable grounds, even though the discharge was equitable at the time of issuance.  The Board’s vote was three to two that the discharge shall change to:  UNDER HONORABLE CONDITIONS(GENERAL)/ Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  (Equity Issue)  This former member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief with recharacterization of his service period to General (Under Honorable Conditions) as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

Documentation

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

Copy of DD Form 214
Copy of Previous Decisional Document (ND99-00420) (4pgs)
Copy of Riverside Community College Transcript (3pgs)
Copy of Letter of Congratulation (1ST Student of Distinction for Communication, Humanities, & Social Sciences) 
Copy of Letter of Recognition (B average or better in at least 12 semester)
Copy of Educational Continuation Letter
Copy of Educational Program Plan
Copy of College Admission/Record
Copy of Social Security Statement (2pgs)
Copy of Character Reference Letter
Copy of Issues 
Letter to American Legion
26 pages from service record
Police Records Check 981118 Riverside, CA
California Motor Vehicle report- driving record
Employment reference dtd 981030
Character reference from City Councilman- City of Perris 990125
Employment reference dtd 981030
Employment reference dtd 981101
Character reference dtd 981118
Employment reference dtd 981025
Employment reference dtd 981025
Professional reference undated
Undated reference
2 pages from MILPERSMAN
Videotaped Character references (6 Character references)
Death Certificates (2)
Newspaper Article

Annual Performance Appraisal dtd 901011
Annual Performance Appraisal dtd 910315
Adult, Alternative and Continuing Educational Services ltr dtd 910906
Performance Evaluation dtd 950908
Employment Achievement Award March 1998
Letter of Congratulations 001011
Riverside Community College Student of Distinction 1999-2000
Riverside Community College letter of recommendation dtd 000504
Riverside Community College letter of recommendation dtd 000509
Riverside Community College letter of recommendation dtd 991202
Victor Valley College Dean’s List 001214
Victor Valley College Dean’s List 010524
Victor Valley College letter of completion 010710
Mandatory Seat Belt Law from California
Consumer Credit Report 010811 6 pages

PART II - SUMMARY OF SERVICE

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

	Active:   USN			810707 - 841220	HON
	Inactive: USNR (DEP)	None

Period of Service Under Review:

Date of Enlistment:  841221		Date of Discharge:  881229

Length of Service (years, months, days):

	Active:    04  00  09
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 

Education Level:  11			AFQT:  78

Highest Rate:  YN2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (4)	Behavior:  3.65 (4)		OTA:  3.80

Military Decorations:  NAM

Unit/Campaign/Service Awards:  GCM, SSDRwb*, HSM 

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:

841221:	Reenlisted onboard USS ENTERPRISE (CVN-65) for 4 years.

880516:	Civil conviction at San Diego Municipal Court for driving under the influence of alcohol and or drugs.
	Sentence to pay $800.00 fine by 881118, 180 days in jail, 5 years probation, drivers license revoked for 90 days and to attend SAC/FCP program.

880526:	NAVDRUGLAB, report indicated applicant tested positive for cocaine.

880616:	Medical evaluation for drug abuse found the applicant to be psychologically dependent.

880928:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due commission of a serious offense ase evidenced by your civil conviction for driving under the influence and misconduct due to drug abuse as evidenced by your wrongful use of cocaine/opiates.

880928:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

881103:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to commission of a serious offense and misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

881115:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse (use).

881129:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

991206:	NDRB documentary record review Docket Number ND99-00420 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 881229 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) at the time of discharge.  However, the applicant’s substantial and creditable post service contributions to his community, his educational accomplishments, and character references convinced the board that he has established himself as a person of good character and conduct and is deserving of relief.  The applicant’s discharge shall change to under Honorable conditions (General) as requested.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560A), effective  15 Jun 87 until 
10 Jan 89, 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