Author: CAP
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Docket No. ND02-00634

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

 ex-RMSN, USN
Docket No. ND02-00634

Applicant’s Request

The application for discharge review, received 020408, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030124.  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.  I, K_ L. W_ (Applicant), believe my discharge was inequitable because it was based on one isolated incident in (7) seven years of service with no other adverse action.  Also I tried to remain on active duty and fight that I was wrongly accused and some tampering or misuse of shipment occurred at that time.
     Since my discharge, I have done a lot of great things for my community and also am presently furthering welding certification and also finish my academics at a four year university next year, possibly Maritime Academy.  Thank you. (Signed by the Applicant)

Documentation

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

County of Los Angeles, Dept of Military and Veterans Affairs, ltr of Feb 21, 2002
L.A. County Sheriffs Dept Police Check (4 pages)
Los Angeles Community College District Transcript (Fall 2001 - Spring 2002)
Applicant's Résumé
Los Angeles Trade Technical College ltr dated Mar 11, 2002
Character Reference letter from D_ G. I_, Law Office, dated Mar 20, 2002
Character Reference letter from M_ J. M_, President, Applied Science and Technology dtd Mar 7, 2002
Character Reference letter from L_ L_, Welding Instructor, LATTC, dtd Mar 20, 2002
Character Reference letter from S_ R. M_ dtd Mar 20, 2002
Character Reference letter from  S_ W_, Vice President, MagmaVOX, dtd Mar 7, 2002
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USN			880222 - 930930	HON
	Inactive: USNR (DEP)	870828 - 880221	COG

Period of Service Under Review:

Date of Enlistment:  931001		Date of Discharge:  950418

Length of Service (years, months, days):

	Active:    01  06  18
	Inactive:  None

Age at Entry:  24			Years Contracted:  2

Education Level:  12			AFQT:  33

Highest Rate:  RM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.6 (1)	Behavior:  3.8 (1)		OTA:  3.8

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NUC, GCM, NDSM, SWASM, N&MCOSSR (3)

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:

931001:	Reenlisted at NRSG, Kolsaas, Norway, for 2 years.

940621:	Armstrong Laboratory (AFMC), Brooks AFB, TX, reported applicant's urinalysis result as positive for Cocaine Metabolite Benzoylecgonine at or above the DOD cutoff level of 100 NG/ML.

940625:	Senior, U.S. Naval Officer, Headquarters Allied Forces Northern Europe provided USNS SAN DIEGO (TAFS-6) the result of applicant's unit sweep urinalysis conducted on 31 May 94, but unable to take appropriate action due to transfer to USNS SAN DIEGO (TAFS-6).  Recommended withdrawal of security clearance.

940630:	Transferred from NRSG, Kolsaas, Norway to NAVPHIBASE Little Creek, VA

940809:	BUPERS authorized USNS San Diego, to transfer Applicant to TPU, Norfolk, VA for separation processing.

940809:	Joined TPU Norfolk, VA for separation processing.

941215:	NJP for violation of UCMJ, Article 112a:  positive urinalysis - cocaine., 
Award:  Forfeiture of $644.40 per month for 1 month, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

950103:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by service record entries.

950130:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

950215:	An Administrative Discharge Board, based upon a preponderance of the evidence and by a vote of 2 to 1, found that the applicant had committed misconduct due to drug abuse, and by a vote of 3 to 0 that the misconduct warranted separation, and recommended discharge under honorable conditions (general).

950316:	Commanding officer recommended discharge with a general (under honorable conditions) by reason of misconduct due to drug abuse (use).  

950331:	BUPERS directed the applicant's discharge under honorable conditions (general) by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 950418 with a General (Under 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).

Responding to the Applicant’s contention that her discharge was inequitable, the Board disagrees.  After NJP for violation of UCMJ Article 112a(cocaine), an Administrative Discharge Board, by a vote of 2 to 1, found that the Applicant had committed misconduct and voted 3 to 0 to recommend an under honorable conditions (general) discharge.  Notably, the Board found that the characterization as under honorable conditions(general) was not consistent with the characterization of discharge given others in similar circumstances.  Most others in similar circumstances receive an other than honorable discharge characterization (OTH).  Relief denied.   

The Applicant requested the Board review her post-service conduct, in assessing the merits of her application.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The Applicant provided character references, school transcripts, and a police check as evidence documenting her post-service.  While the Applicant’s efforts are appreciated, the Board believed they were not of substantial enough merit to overcome the Applicant’s misconduct.  Therefore, no relief is granted.  The Applicant is encouraged to continue with her pursuits and is reminded that she remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearings is recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, 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/A9219/A9235/A9221/A9223/A9439/A9221