Author: CAP
Last saved by: Department of the Navy
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Docket No. ND01-01023

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

 ex-BM3, USN
Docket No. ND01-01023

Applicant’s Request

The application for discharge review, received 010803, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Tyler, TX.  The applicant did not list any 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 020221.  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 and narrative reason of the discharge shall not change.  The discharge shall remain: UNDER HONORABLE CONDITIONS (GENERAL)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.  .

  
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I was discharge based on "Drug Abuse" so stated on my DD 214.  I took Tylenol with codeine and only during a short period of time and after receiving counseling and by final determination conclusion by navy drug rehab that I was not declared addicted or dependent upon the drug.  I remained drug free to present time. I did not take the Tylenol to be discharged, it was a personal matter related to separation and pending divorce.  I partook it only as a help for sleeping and not to get "high " my job performance was not effected and though I decided to separate I was not entirely unhappy with the military, my decision to separate was based on desire to return to civilian life.  To seek a new career.  I have remained clean and wish to continue a clean productive life plus feel proud of the service time I do have to my country.  I have included a complete explanation of the circumstances surrounding the drug use please note I do not have the funds to pay for counsel/representative.  I wish to have narrative reason (BLK 28 ) re-stated.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	921008 - 921122	COG

Period of Service Under Review:

Date of Enlistment:  921123		Date of Discharge:  981122

Length of Service (years, months, days):

	Active:    06  00  00
	Inactive:  None

Age at Entry:  27			Years Contracted:  4 (24 months extension)

Education Level:  16			AFQT:  35

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (2)	Behavior:  3.70 (2)		OTA:  3.80 (4.0 Evals)
Performance:  3.25 (4)	Behavior:  3.50 (4)		OTA:  3.10 (5.0 Evals)

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC, MUC, NAVY"E"RIBBON, GCM, NDSM, AFEM, SASM(2), SSDR(2)

Days of Unauthorized Absence:  None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

980508:	PLEASE REFER TO INCIDENT REPORT DTD 980508.

981016:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your violation of the UCMJ, Article 112a, wrongful use of a Schedule III controlled substance on 980414 through 980501.

981016:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

981112:	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 general under honorable conditions.

981118:	Commanding officer recommended discharge general under honorable conditions by reason of misconduct due to drug abuse (use). 

981120:	Medical Officer's dependency evaluation indicates member does not have a drug or alcohol problem, no treatment required, does not meet DSM&V criteria for alcohol or drug dependency.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 981122 general under 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. While the applicant may feel that his marital problems were mitigating factors that contributed to his misconduct, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. No other narrative reason for separation more clearly describes the conditions surrounding his discharge.  The discharge was proper and equitable.  Relief denied.

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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, Article 1910-146 (formerly 3630620), Separation 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 "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/A9319/A9303/A9217/A9221