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Docket No. ND02-01153

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

 ex-RMSA, USN
Docket No. ND02-01153

Applicant’s Request

The application for discharge review, received 020814, 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030602.  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 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I joined the United States Navy at the age of 17 and tried to create a better life for myself.  Unfortunately I had let personal matters affect my ability to do my job 110%.  I had asked for help for my problems but due to the nature I was told I could no longer remain in the military.  I sought rehabilitation for my addictions and although it has been a few painful years I am still on my road to recovery.  I attended a community college in Chicago working towards a nursing degree and hope to get my bachelors.  I also am working as an accounts representative for a finance company.  My future goal is to go to a good college and give to communities that would need my help.  Furthermore, I had been tested positive until after the fact that I had told them I had a problem and also because I was told I would get help and be kept in the military!  This concludes my case for deliberation, but let me also add that in my short career in the Navy it was enjoyable and I might have stayed.

Documentation

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

Copy of DD Form 214
Letter of Appreciation dated July 22, 1996
Letter of Appreciation dated June 10, 1997
Certificate of Completion (Multilevel Mail Server REL 2.0 Operator Training) for September 1996
Certificate of Completion (NOVA Computer Operations) November 1996
Certificate of Completion (Personal Control Skills for Prevention of Alcohol and other Drug Abuse, other high risk behavior, and Promotion of Individual Readiness) dated August 15, 1996

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	950120 - 950919	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  950920		Date of Discharge:  971215

Length of Service (years, months, days):

	Active:    02  02  26
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 

Education Level:  12			AFQT:  69

Highest Rate:  RMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.66 (3)	Behavior:  1.33 (3)		OTA:  2.30*

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

*Unable to read all overall trait marks.

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

GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

970620:	Alcohol Screening Report indicates Applicant was referred for an ETOH and drug (THC) screening by her command due to her self disclosures.  Applicant appears to meet DSM-IV criteria for ETOH dependence and DSM-IV criteria for THC (Cannabis) dependence.  Recommend for Intensive Outpatient treatment for ETOH and THC (Cannabis) dependence, upon completion of treatment return to full duty.  Recommended treatment at Point Loma, San Diego, CA treatment facility. 

970630:	DAAR indicates Applicant was found dependent, amenable and eligible, recommended for Level III Treatment.

970825:	NJP for violation of UCMJ, Article 92: (2 Specifications) Did on or about April 1997 and June through 12 June 1997, violate a lawful general regulation, Article 1138, U.S. Navy Regulations dated 14 September 1990, by wrongfully using and possessing controlled substances, violation of UCMJ, Article 112a: (2 Specifications) Did on or about June 1 through 12 June 1997 wrongfully use and posses and unknown quantity of Lysergic Acid Diethylamide (LSD), a controlled substance, violation of UCMJ, Article 134: Did on or about June 1 through 12 June 1997, as a result of wrongful previous overindulgence in drugs, was incapacitated for the proper performance of her duties.
	Award:  Forfeiture of $505.00 pay per month for 2 months, restriction to CFAY for 45 days, extra duty for 45 days, reduction to next inferior pay grade.  Appealed.

970825:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all drug incidents in your current enlistment.

970904:	Applicant advised of her rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

970910:	Appeal denied.

970924:	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 general under honorable conditions.

971017:	Commanding Officer recommended discharge general under honorable conditions by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments (verbatim):  [RMSA B_ (Applicant) does not qualify for continued service in the Navy based on her admitted and documented use of illegal drugs.  RMSA B_ (Applicant) conduct and behavior are prejudicial to good order and discipline.  She has demonstrated an inability to conform to the absolute minimum standards required of each and every service member.  She will be separated under general conditions by Personnel Support Detachment Point Loma, CA after completion or failure to complete Level III treatment for alcohol and drug dependency.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 971215 with a characterization of 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).

Issue 1:  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.  While she may feel that her addiction was a contributing factor, it does not mitigate the Applicant’s misconduct.  A characterization of service of general (under honorable) conditions is warranted when the member’s conduct constitutes a departure from that expected of a Sailor.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) for illegal drug use.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her disobedience of 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.  An upgrade to honorable would be inappropriate.  Relief denied.  For the Applicant’s edification, Sailors guilty of illegal drug use normally receive a discharge characterization of under other than honorable conditions. 

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 living a drug free life style, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate her misconduct while on active duty.  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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, 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/A9301/A9317/A9221