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

Docket No. ND01-00945

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

 ex-MMFN, USN
Docket No. ND01-00945

Applicant’s Request

The application for discharge review, received 010719, 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 Civilian Counsel as the representative on the DD Form 293.  In the acknowledgement letter to the applicant, he 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 020130.  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.  My employment opportunities are limited and at times unavailable when U.O.T.H.C is reported.  But for this youthful lapse of judgement, I believe I served conscientiously and honorably.  Since my separation, I have achieved some measure of accomplishment and success.  I believe these achievements demonstrate that I have matured and should be considered for upgrade.
 
1. (Counsel's Issue) Mr E_____ request a review of his Discharge U.O.T.H.C. and request that said discharge be amended or revised to a General Discharge for the following reason:  But for youthful lapse of judgement, Mr E___ served conscientiously and honorably in the United States Navy.  One singular event, the consequences of which were beyond the contemplation and comprehension of Mr E____ at the time, has had quite possibly will have severe detrimental effects upon Mr E____'s ability to establish himself as a productive member of society and accomplished citizen.  Employment opportunities are limited and, at times unavailable when a U.O.T.H.C. is reported to a prospective employer.  Mr E____'s accomplishments and success since discharge more than demonstrate that he has matured and learned from his unfortunate experience.  In addition to the: 1) copy of college diploma, 2) letter of recommendation of college professor, 3) letter of recommendation from current employer, 4) resume and 5) letter from counsel, copies of which are attached for your review, Mr E____ has continued his efforts to succeed and become a productive and contributing member of society since the date of his original application.  Attached, for your review and submitted as additional evidence in support of his request, are the following: 1) letter from employer detailing promotion, 2) copy of general warranty deed as evidence of purchase of a home in Jasper, IN.  A change from current status to a General Discharge under honorable conditions will enhance his ability to obtain desirable employment and enable Mr. E____ pursue opportunities otherwise unavailable to him under the present status.           

Documentation

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

Copy of Bachelor of Science Degree (Electrical Engineering)
Copy of Letters of Recommendation (2)
Employment Reference Letter
Resume (2pgs)
Copy of DD Form 214
Letter from J___ V. L____, Attorney at Law

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	900509 - 900813	COG

Period of Service Under Review:

Date of Enlistment:  900814		Date of Discharge:  930704

Length of Service (years, months, days):

	Active:    02  10  21
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  85

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.53 (3)	Behavior:  2.86 (3)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

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:

930528:	NJP for violation of UCMJ, Article 112a: (2 Specifications), Spec 1: Wrongful use of marijuana (THC) on or about 921225; Spec 2: Wrongful use of Lysergic Acid Diethylamide (LSD) on or about 921225.
	Award:  Forfeiture of $505.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

930528:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by CO's NJP held on 930528.

930528:	Applicant advised of his 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.

930604:	Drug and Alcohol evaluation indicates applicant admitted to the use of THC and LSD to NIS, found not drug or alcohol dependent.

930617:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  

930628:	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 930704 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  The applicant used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  The discharge was proper and equitable.  Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  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 his 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.  He is reminded that he 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 5/93, effective 
05 Mar 93 until 21 Jul 94, 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

.

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/A9301/A9217/A9439/A9221