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

Docket No. ND02-00532

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

 ex-SMSN, USN
Docket No. ND02-00532

Applicant’s Request

The application for discharge review, received 020318, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed the American Legion as the representative on the DD Form 293.  In the acknowledgement letter to the Applicant, the Applicant 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 010307.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  (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
Copy of Certificate of Achievement dated November 19, 1999
Copy of Award of Excellence dated January 2000
Copy of Certificate of Appreciation dated June 4, 1999

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	891011 - 900624	COG

Period of Service Under Review:

Date of Enlistment:  900625		Date of Discharge:  940216

Length of Service (years, months, days):

	Active:    03  07  22
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  36

Highest Rate:  SM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.88 (5)	Behavior:  3.80 (5)		OTA:  3.84

Military Decorations:  None

Unit/Campaign/Service Awards:  JMU, NUC, MUC, BER, NDSM, SSDR (2), SASM with 3 Bronze Stars

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

900627:	Applicant briefed on Navy's policy of drug and alcohol abuse.

931026:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance in September 1993, to wit: marijuana.
	Award: Forfeiture of $520 per month for 2 months, restriction and extra duty for 45 days, reduction to SMSN.  No indication of appeal in the record.

931028:	NAVDRUGLAB, Norfolk, VA reported Applicant's urine sample, received 930930, tested positive for THC.

931101:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

931130:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

940202:	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, that the misconduct warranted separation, and recommended discharge under honorable conditions (general).

940215:	Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty.  Unit sweep urinalysis 931010.  CAAC recommended separate from service.  Physician found Applicant not dependent and recommended separation.  Commanding Officer recommended separation.  Comments: 22 year old male identified by unit sweep urinalysis.  Member was evaluated by the medical officer and determined to be not dependant.  Currently being processed for administrative separation.

940216:	Medical evaluation for drug abuse found the Applicant to be neither a drug abuser, nor drug dependent.  

940309:	Commanding Officer reported Applicant’s discharge under honorable conditions (general) on 940216 by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 940216 under honorable conditions (general) 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.  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.  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 inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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 of a substance free lifestyle, 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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective 
05 Mar 93 until 21 Jul 94, 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 "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/A9221/A9217/A9439/