Author: CAP
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Docket No. ND02-00497

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

 ex-SA, USN
Docket No. ND02-00497

Applicant’s Request

The application for discharge review, received 020308, 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 021115.  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.  I S_ P. M_ received a discharge from the Armed Forces of the United States under other than honorable conditions.  I would like to change my discharge to General/under honorable conditions.  The reason for my discharge was that I did not want to be in the military any longer.  It was not right for me.  I told my commanding officer that I no longer wanted to be in the military, he said "there is only two ways to get out."  One, go U.A. Or two, drug use.  So I did both to make sure I got out.  I heard from my ship mates that if I go U.A.  When you come back they drug test you.  So I knew if I did a drug and came back they would drug test me and then I would be out.  That was the first time I had used drugs.  I know now that was not a good thing to do.  I am asking for this request because I would like to persue a career in law enforcement.  I can not do that with an OTH.  I have not done drugs at all sense then.  I have a clean record and know I will do a great job in law enforcement.  I would like a written response to this letter if you could please. Thank you for your time.

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:   USN			None
	Inactive: USNR (DEP)	990326 - 990602	COG

Period of Service Under Review:

Date of Enlistment:  990603		Date of Discharge:  000412

Length of Service (years, months, days):

	Active:    00  10  10
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  36

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB		Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  None

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:

000210:	NJP for violation of UCMJ, Article 86: Absence without leave. 
	Award:  Oral reprimand, forfeiture of $100.00 pay per month for 2 months, restriction duty for 30 days.  No indication of appeal in the record.

000217:	NAVDRUGLAB SAN DIEGO, CA, reported Applicant’s urine sample, received 000209, tested positive for [MDA/MDMA].
	Note: MDMA is also known as “ecstacy.”

000224:	NJP for violation of UCMJ, Article 112a: Wrongful use, possession, etc., of controlled substance.
	Award:  Oral reprimand, forfeiture of $500.00 pay per month for 2 months.  No indication of appeal in the record.

000302:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000302:	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.

000313:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments (verbatim):  [SR M_ (Applicant) is being processed for misconduct due to drug use…SR M_ (Applicant’s) actions are clearly evident that this sailor does not want to be in the military service.  His blatant disregard for his fellow shipmates and the Navy’s rules and regulations is totally unacceptable.  SR M_ (Applicant) does not have the potential for continued military service in the U. S. Navy or any other military branch.  Therefore, it is my strongest recommendation that SR M_ (Applicant) be discharged from the U. S. Navy, with an Other Than Honorable discharge] 

000324:	Commander Submarine Force, U.S. Pacific Fleet authorized 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 000412 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 used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  The Board found that the Applicant’s age, education level, and test scores qualified him for enlistment.  The Applicant states he used drugs because he “no longer wanted to be in the military.”  The record clearly reflects the Applicant’s deliberate disregard for the requirements of military discipline and demonstrated he had no potential for further service.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) on two occasions.  The Applicant’s discharge characterization accurately reflects his service to his country.  A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  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 that regulate good order and discipline in the naval service, and falls far short of that required for an honorable characterization of service.  An upgrade to under honorable conditions would be inappropriate.  It must be noted that most Sailor’s serve honorably and well and therefore earn honorable discharges.  In fairness to those Sailors, Commanders and Separation Authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  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.  

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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 - 11 Feb 2001, 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 "afls14.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/A9317/A9229/A9217/A9223/A9439