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

 ex-AEAR, USN
Docket No. ND01-00895

Applicant’s Request

The application for discharge review, received 010702, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing before the Board in the Washington National Capital Region.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, the applicant 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 020110.  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

1.  The discharge is excessive & did not take into consideration the circumstances at the time  (see attached).

Documentation

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

Statement from the applicant
Character/job reference, undated
Character/job reference dated February 26, 1996
Character/job reference dated February 12, 1996
Character reference dated May 10, 1994
Character reference dated May 9, 1994
Character reference dated May 8, 1994
Character reference, undated
Newspaper article from the Jamestown Sun
Newspaper article from the Jet Journal dated July 1, 1994
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	910529 - 911201	COG

Period of Service Under Review:

Date of Enlistment:  911202		Date of Discharge:  941213

Length of Service (years, months, days):

	Active:    03  00  12
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  11			AFQT:  53

Highest Rate:  AEAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.68 (5)	Behavior:  2.68 (5)		OTA:  2.68

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  109

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:

921217:	Applicant declared a deserter.

940513:	Special Court Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence 2300, 17Nov93 until 1600, 7Mar94 (109 days/surrendered.)
	Charge II: violation of the UCMJ, Article 112A:
	Specification: Wrongfully use THC on 9Mar94.
	Findings: to Charge I and II specifications thereunder, guilty.
	Sentence: Confinement for 65 days, forfeiture of $500 per month for 2 months, reduction to AEAR.
	CA 940712:  Sentence approved and ordered executed.

940623:	Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent. 

940629:	Drug and Alcohol Abuse Report: Marijuana abuse, 1 to 3 times per month, ashore off duty.  Random urinalysis 940305.  Physician found applicant not dependent and recommended separate not via VA hospital.  Commanding officer recommended separate not via VA hospital.  Comments: AEAR (applicant's) past and present work record is poor.  Her potential for continued service is also considered poor.  She is currently being processed from the Navy.

940802:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense as evidenced by her violation of UCMJ Art 112A - wrongful use of a controlled substance which has been punished at a special court-martial proceeding during this current enlistment.

940802:	Applicant advised of her rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

940927:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and misconduct due to commission of a serious offense. 

941006:	Chief of Naval Personnel forwarded discharge recommendation to Principal Deputy Assistant Secretary of the Navy (Manpower and Reserve Affairs).

941128:	Principal Deputy Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved discharge recommendation.

941201:	BUPERS 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 941213 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).

Issue 1. The applicant was discharged under other than honorable conditions by reason of misconduct due to drug abuse (use) and misconduct due to commission of a serious offense. In response to the applicant’s issue, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency (C, Part IV).  The applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.   Relief denied. 

The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of her not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  She is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

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 "afls10.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