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

Docket No. ND02-00115

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

 ex-SMSA, USN
Docket No. ND02-00115

Applicant’s Request

The application for discharge review, received 011012, 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 020701.  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, as submitted

1.  Inequitable discharge was based on last 8 months of enlistment without due consideration of the rest of my service:  1) good evals, 2) good work habits, ect.

2.  Wife was gone with 6 month old son when I returned from sea duty.

3.  Saw phychologist and was diagnosed with immaturity Level.  Could not handle wife leaving with son.

4.  Was never submitted to Drug Rehab program.  After discharge, I straightened myself out and became a productive citizen.

Documentation

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

Copy of DD Form 214
Copy of diploma in Computer Applications Specialist dated May 29, 1991
Copy of certificate for Employee of the Month dated January 29, 1996
Copy of certificate dated April 1995
Copy of certificate dated May 1996
Copy of certificate dated April 15, 1994
Copy of certificate of achievement dated April 24, 1995
Copy of American Red Cross cards for instructor candidate training dated September 11, 1996
Copy of American Red Cross cards for adult CPR dated March 24, 1996
Copy of American Red Cross cards for standard first aid dated March 24, 1996

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	851102 - 860306	COG

Period of Service Under Review:

Date of Enlistment:  860307		Date of Discharge:  891109

Length of Service (years, months, days):

	Active:    03  08  03
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  72

Highest Rate:  SM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.23 (4)	Behavior:  3.23 (4)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, BEA

Days of Unauthorized Absence:  54

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:

860308:	Applicant briefed on Navy's policy on drug and alcohol abuse.

890427:	NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty on 1300, 19Apr89, violation of UCMJ, Article 92 (2 specs): Failure to obey lawful order on 0500 and 1230, 19Apr89.
	Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 7 days.  No indication of appeal in the record.

890728:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (2 specs):
	Specification 1: Absence from unit from 0730, 20May89 to 2242, 25Jun89 (36 days/).
	Specification 2: Absence from unit 06Jul89 until 24Jul89 (18 days/).
	Charge II: violation of the UMCJ, Article 87 (2 specs):
	Specification 1: Missed movement of the USS FORT FISHER (LSD-40) on 19Jun89.
	Specification 2: Missed movement of the USS FORT FISHER (LSD-40) on 10Jul89.
	Finding:  to Charge I and II and the specifications thereunder, guilty.
	Sentence:  Forfeiture of $250.00 per month for 1 month, confinement for 30 days.
	CA action 890822:  Sentence approved and order executed.

890808:	NAVDRUGLAB, San Diego, CA reported applicant's urine sample, received 890731, tested positive for amphetamine/methamphetamine.

890811:	Applicant waived his right to submit matters for convening authority review.

890825:	NJP for violation of UCMJ, Article 112A: Wrongful use amphetamine/methamphetamine on 27Jul89.
	Award: Forfeiture of $390 per month for 2 months, restriction and extra duty for 45 days, reduction to SMSA.  No indication of appeal in the record.

890828:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by summary court martial dated 26 July 1989 with convictions of 2 extensive periods of unauthorized absence including missing ship's movement and NJP dated 25 August 1989 for usage of a controlled substance (methamphetamine/amphetamines), misconduct due to drug abuse as evidenced by NJP dated 25 August 1989, and misconduct due to pattern of misconduct as evidenced by NJP dated 27 April 1989, summary court martial dated 26 July 1989 and NJP dated 25 August 1989.

890830:	Applicant advised of rights and having consulted 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.

891023:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to drug abuse, and misconduct due to pattern of misconduct.

891108:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

891109:	Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 891109 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.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The applicant’s service was marred by a court-martial for the commission of a serious offense and by illegal drug use.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  The Board found the applicant’s good service during the first three years of his enlistment does not mitigate his misconduct.  Relief denied.

Issues 2 and 3.  While the applicant may feel that his immaturity and parental problems were factors that contributed to his actions, 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.  Relief denied.

Issue 4.  The applicant was not offered attendance at a substance abuse rehabilitation center because he was diagnosed on 891109 as a drug abuser, not dependent.  The medical officer noted the applicant did not feel he had a problem and did not want help. This issue does not serve as a basis for relief.  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 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, 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/A9217/A9201/A9307/A9323/A9317/A9221