Author: CAP
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Docket No. ND02-00188

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

 ex-AMH2, USN
Docket No. ND02-00188

Applicant’s Request

The application for discharge review, received 011226, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  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 020731.  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 1910-146, formerly Article 3630620.
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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I would like for my discharge to be upgraded from OTH to Honorable, by all means possible.  I have four kids to support.  I want to be able to have a decent job.  I gave my country 13 years of my life I at least deserve to have a decent job.  Thank you

I never went to captain mask I went 2 to 3 months after they told me I popped positive for cocaine.  Now I'm around people giving me a hard time.  So I went to the legal officer and told him I just want out. We went throughout the process that away.

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):

	Inactive: USNR (DEP)	860327 - 860409	COG
	Active:   USN			860410 - 900304	HON
	             USN			900305 - 970916	HON

Period of Service Under Review:

Date of Enlistment:  970917		Date of Discharge:  991022

Length of Service (years, months, days):

	Active:    02  01  06
	Inactive:  None

Age at Entry:  30			Years Contracted:  3

Education Level:  12			AFQT:  00

Highest Rate:  AMH2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)	Behavior:  4.00 (2)		OTA:  3.72

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC (2), NER (2), GCM (2), NDSM, AFEM (2), AFEM (OPS SW), AFSM, SASM with Bronze Star, SSDR (5), NATO (2)

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 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

990917:	Applicant reenlisted for term of three years at VF-102, Naval Air Station, Oceana, VA

990524:	NAVDRUGLAB, reports Applicant's urine sample, received 990514, tested positive for cocaine.

990831:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

990917:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all drug incidents in current enlistment.

990917:	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.

991006:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

991012:	COMNAVAIRLANT Norfolk, VA authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

991013:	Commanding Officer, Strike Fighter Squadron ONE ZERO ONE 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 991022 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 asserts he deserves to have a decent job and his service warrants an upgrade to his discharge.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An other than honorable discharge is appropriate when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  A one-time incident can serve to significantly outweigh the positive aspects of the member's service.  The Applicant’s service was marred by the use of a controlled substance in violation of the Uniform Code of Military Justice and the Navy's Zero Tolerance Policy.  The Board is authorized to only examine the enlistment during which the discharge was awarded.  Honorable prior service is not a cause for relief.  The Applicant’s use of drugs, which forms the primary basis for determining the character of his service, reflects his willful use of a controlled substance and disregard for the orders and directives that regulate good order and discipline in the naval service, and falls short of that required for an upgrade of his characterization of service.

The Applicant’s other than honorable discharge was proper and equitable.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, will change the reason for discharge if such a change is warranted.  There was no evidence of impropriety, inequity or procedural irregularities in the Applicant’s discharge.  The Applicant’s summary of service clearly documents that drug abuse (use) was the reason the Applicant was discharged.  The Applicant acknowledged and waived his rights.  He was notified that by waiving his rights and accepting an other than honorable discharge, he could possibly encounter significant difficulties in obtaining employment and other benefits.  The Applicant was afforded the appropriate due process at every opportunity.  Drug abuse (use) warrants processing for separation, normally under other than honorable conditions.  The NDRB found the Applicant’s service record devoid of any mitigating or extenuating factors that would warrant an upgrade of the Applicant’s discharge to an honorable characterization.  Relief denied.

The following is provided for the benefit of the Applicant.  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, good conduct in civilian life, or to enhance future employment, 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 credible evidence the Applicant is drug free, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The Applicant did not provide any of these documents.  Relief denied.

The Applicant is reminded 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.  A personal appearance is highly recommended.  The Applicant can provide additional documentation to support any claims of an error or injustice that occurred during his processing.  In addition, the Applicant can present any evidence of post-service accomplishments at the personal appearance hearing.  Legal representation at a personal appearance hearing is recommended, but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until 26 March 2000, 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/A9453/A9219/A9217/A9439/9221