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

 ex-ABHAA, USN
Docket No. ND01-01090

Applicant’s Request

The application for discharge review, received 010815, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020328.  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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I am writing to explain my actions which resulted in my premature exit from the U. S. Navy on July 25, 1992.  I would also like to make you aware of how my life has changed for the better. I joined the Navy on July 25, 1990, as a twenty year old unsure of what I wanted to do with my life.  I was in search of self discipline and a career path.  The Navy did teach me the discipline and for the first year and a half I was on the right track.  I worked on the flight deck of the US S Nimitz as a tractor driver, elevator operator and eventually a flight deck director.  I served in Operation "Desert Storm" and "Desert Sweep" in the Persian Gulf.  One evening in early June, 1992, while on liberty in Bremerton, Washington, some shipmates and I went out on the town and over-indulged.  I then used poor judgement and tried marijuana.  A couple of days later upon returning to the ship, I was called to the Master at Arms and directed to submit to a urine test, which proved positive.  Two weeks later I was summoned to appear before the Captain.  At that time, the Captain gave me the option of taking an "other than honorable" discharge or staying in and receiving time in the brig and probably receiving a "dishonorable" discharge.  Being aware of the zero tolerance policy and having tested positive, I was certain I would receive a "dishonorable" discharge.  I was not made fully aware of the consequences of an IC other than honorable" discharge.  I took the early-out option fearing that a "dishonorable" discharge would have major ramifications in my life.  I was offered no other options nor was I offered any form of rehabilitation or treatment. My life now, nine years later, could not be better.  I have a beautiful wife and a new baby daughter.  I have a wonderful family with whom I am very close.  I have been employed by Southwestern Bell Telephone Co. for the past five years as a cable splicing technician and presently as a customer service technician. I am looking to purchase a home for my family.  Without my V. A. benefits, it will be extremely difficult to accomplish this. I, therefore, am respectfully requesting the Board to consider my situation and to change my "other than honorable" discharge to an "honorable" discharge.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	900503 - 900724	COG

Period of Service Under Review:

Date of Enlistment:  900725		Date of Discharge:  920717

Length of Service (years, months, days):

	Active:    01  11  23
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  69

Highest Rate:  ABHAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.73 (3)	Behavior:  2.80 (3)		OTA:  3.33

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SASM with Bronze Star

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:

920617:	Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.  

920618:	NJP for violation of UCMJ, Article 112A (4 specs): (1) Wrongfully used lysergic acid diethylamide (LSD)UCMJ between January and February 1992. (2) Wrongfully used marijuana in March 1992, (3) Wrongfully possessed about 2 grams of marijuana on 1Jun92, (4) Wrongfully used marijuana on 1Jun92.
	Award: Forfeiture of $440 per month for 2 months, restriction and extra duty for 45 days, reduction to ABHAA.  No indication of appeal in the record.

920618:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your service record.

920618:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

920620:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

920706:	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 920717 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.  On 920617, a medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.  The Navy was not obligated to provide rehabilitation.  On 920618, the applicant was advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.  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.  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.  Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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