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Docket No. ND02-00227

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

ex-EM2, USN
Docket No. ND02-00227

Applicant’s Request

The application for discharge review, received 020110, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review.  The applicant designated the American Legion 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 021008.  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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  The decision at my administrative review board was ignored, with all the supporting documentation attached to this application I am respectfully requesting an upgrade of my discharge.

Submitted by the American Legion:

2.  (Equity Issue)  This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Applicant's ltr to the Board dtd Nov 14, 2001
LT J_ A_, JAGC, USNR, Defense Attorney dtd Jan 7, 2000
Dept of VA ltr to the applicant dtd May 17, 2000
Copy of DD Form 214 (2 copies)
Character Reference ltr from C_ J. B_, Church of Today dtd Jul 2, 2001
Memo from Dir, CREDO, San Diego, stating that applicant completed a 3 session training event for new team member volunteers dtd 28 Jun 2001
Introduction to CREDO for Commands information sheet
Letter from Tariq Khamisa Foundation (TKF) dtd June 22, 2001
Copies of applicant's Evaluation Reports (7 reports)
Letters of Outstanding Achievement, Commendation, Appreciation and Citation (15 letters/citations)
Certificate of Completion of Apprenticeship (Electrician) dtd Feb 24, 1993

PART II - SUMMARY OF SERVICE

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

	Active:    USN			930525 - 971120	HON
		    USN		850215 - 930524	HON
	Active:    USNR		820503 - 850214	To reenlist USN
	Inactive:  USNR		820126 - 820502	Report ACDU

Period of Service Under Review:

Date of Enlistment:  971121		Date of Discharge:  991223

Length of Service (years, months, days):

	Active:    02  01  03
	Inactive:  None

Age at Entry:  39			Years Contracted:  4 

Education Level:  12			AFQT:  65

Highest Rate:  EM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.67 (3)	Behavior:  2.67 (3)		OTA:  3.43  (5.0 evals)

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM(4), AFEM, SSDR(4), MUC, NDSM, OSSR, Battle "E" Ribbon

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:

971121:	Reenlisted at San Diego, CA for 4 years.

971204:	Unauthorized absence from USS CONSTELLATION (CV64) at 0700, Intentions unknown.  Surrendered on board at 0800, 971204 (UA for about 1 hour).

980525:	Retention Warning:  Advised of deficiency (provoking speeches or gestures), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

990408:	NJP for violation of UCMJ, Article 92:  dereliction of duty.
Award:  Forfeiture of $1243 pay per month for 2 months (½ month suspended), restriction for 45 days (suspended for 3 months), reduction to E-5 (suspended for 3 months).  No indication of appeal in the record.

990408:	Retention Warning:  Advised of deficiency (derelict in performance of duty in that applicant failed to stand a proper Number 2 Main Switchboard SSTG 2A Watch, by sleeping on watch), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990728:	NAVDRUGLAB, San Diego, CA, report:  Urinalysis received 20JUL99, tested positive for Amphetamine/Methamphetamine.

990802:	NJP for violation of UCMJ, Article 112a:  Wrongful use, possession of controlled substance.
Award:  Forfeiture of pay $1097.05 per month for 2 months, restriction and extra duty for 45 days, reduction to E-5.  No indication of appeal in the record.

990929:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to a pattern of misconduct.

990929:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

991014:	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 and due to a pattern of misconduct, by a vote of 2 to 1, that the misconduct warrants suspended separation for 12 months, and by unanimous vote recommended discharge under other than honorable conditions.

991105:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments (verbatim):  "Throughout Petty Officer (Applicant)'s career, his performance has been average at best.  His most recent use of poor judgment through violation of UCMJ Article 112a, Misconduct due to drug abuse, attest to his disregard for the Navy's policy of zero tolerance for drugs.  As a senior petty officer he has received two CO NJP's within a five month period.  This is clearly not a senior petty officer that should be retained in the service for our junior sailors to emulate.  I most strongly recommended immediate Administrative Separation due to misconduct due to drug abuse and misconduct due to a pattern of misconduct and an Other Than Honorable characterization."

991213:	CNMPC 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 991223 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.  An administrative discharge board does not determine an applicant’s characterization of service, nor does it make the decision to separate a member.  It does provides recommendations to the separation authority. There is credible evidence in the record that the applicant used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions irregardless of the applicant’s length of service.  The discharge was proper and equitable.  Relief denied.

Issue 2.  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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the applicant is drug free, are examples of verifiable documentation 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.  Relief not warranted.

The applicant 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.  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/A9221/A9217/A9439