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Docket No. ND02-00379

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

ex-EOCA, USNR
Docket No. ND02-00379

Applicant’s Request

The application for discharge review, received 020214, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance discharge review before a traveling panel closest to Nashville, TN.  The Applicant listed 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) does not travel; all hearings are held in the Washington DC area.  The 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 021022.  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.  Nature of separation to harsh for offenses committed.

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:

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  860731		Date of Discharge:  890125

Length of Service (years, months, days):

	Active:    02  05  05
	Inactive:  00  00  20

Age at Entry:  19			Years Contracted:  8

Education Level:  12			AFQT:  24

Highest Rate:  EOCN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.30 (2)	Behavior:  2.90 (2)		OTA:  3.30

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

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:

860821:	Applicant ordered to active duty for 36 months under the Active Mariner Program.

860822:	Applicant briefed on Navy's policy of drug and alcohol abuse.

880707:	NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana on or about 23May88.
	Award: Forfeiture of $376 per month for 2 months, restriction and extra duty for 14 days, reduction to EOCA.  No indication of appeal in the record.

880712:	Drug and Alcohol Abuse Report:  Marijuana abuse, less than monthly, ashore off duty.  Random urinalysis 880523.  Physician found Applicant not dependent.  Commanding officer recommended retention, Level I treatment and NJP.  Comments: Commanding Officer has determined Constructionmen Apprentice (Applicant) possesses potential for further Naval Service.

880819:	Counseling:  Advised of deficiency (performance), notified of corrective actions and assistance available.

880819:	Medical evaluation for alcohol/drug abuse found the Applicant to be not alcohol/drug dependent.  No evidence of drug use/abuse other than the episode in late May 88.

881008:	Retention Warning:  Advised of deficiency (Wrongful use of controlled substance, to wit: marijuana.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

881028:	Applicant successfully completed the Navy Alcohol and Drug Safety Action Program.

881031:	Retention Warning:  Advised of deficiency (Drug abuse.), advised of consequences of further deficiencies, and issued discharge warning. 

881214:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 881205, tested positive for THC.

881220:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to continued drug abuse.

881220:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

881222:	Drug and Alcohol Abuse Report:  Marijuana abuse, less than monthly, ashore off duty.  Surveillance urinalysis 881129.  DAPA found Applicant not dependent.  Physician recommended separation.  Commanding Officer recommended separation.  Comments: Commanding Officer has determined no future potential for further naval service.

881222:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

890105:	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 890125 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:  Drug abuse (use) warranted processing for separation under other than honorable conditions.  The Applicant was found to have used illegal drugs on two occasions.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience and disregard for 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 Applicant’s service is equitably characterized as being performed under other than honorable conditions.  Relief not warranted.

Issue 2:  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, a positive 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 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 remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.

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/A9401/A9221/A9217/A9439