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

 ex-QMSN, USN
Docket No. ND02-01156

Applicant’s Request

The application for discharge review, received 020815, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Boston, MA.  The applicant listed Disabled American Veterans as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington, DC Area.  The Naval Discharge Review Board (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 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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  Overall evaluation marks (evals) documents are consistent and warrant a characterization of service as honorable. (1) 4.0 overall evaluation is not consistent with and does not warrant a character of service "under other than honorable".  The related issues that directly and indirectly were the cause of misconduct no longer exist.  Please refer to medical board. (2) My rights to counsel, administrative board hearing(s) were not provided IAW naval regulation(s) while cooperating NIS instruction, that instruction was misleading and directly effected the decision process of my election of rights to qualified counsel and administrative board hearing. (3) Through manipulation, my rights were not provided or afforded to me at that time.  I respectfully request to address these issues before a traveling panel at your earliest convenience.

2.  (DAV'S Issue)  After review  of the Former Service Member (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to not the contention of the appellant in his request for a discharge upgrade of his current Under Other Than Honorable (UOTH) discharge to that of Honorable.

The FSM served on active service until December 2, 1994, at which time he was discharge due to misconduct/drug abuse.

At the later part of his service the FSM had underwent a Medical Evaluation Board for his diagnosed Adjustment Disorder.  At this type of disability can lead to inappropriate actions and poor judgement, we believe the FSM may not have been able to fully dissociate right from wrong due to the severity of his condition, Therefore we ask that course of equitable relief be considered in this case in the form of a General, Under Honorable Conditions Discharge.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to any issue upon which the applicant submits to the Board's discretionary authority, under SECNAVINST 5420.174C.

We ask for the Board's careful and sympathetic consideration of all the evidence fo record used in rendering a fair and impartial decision.  These issue do not supersede any issues previously submitted by the Applicant.

Documentation

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

Copy of Enlisted Performance Record (3 pages)
Copy of Medical Board Evaluation (2 pages)
Copy of DD Form 214
Copy of Statement of Awareness (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR 		890621 - 890627	COG
	Active:   USN			890628 - 920903	HON

Period of Service Under Review:

Date of Enlistment:  920904		Date of Discharge:  941202

Length of Service (years, months, days):

	Active:    02  00  28
	Inactive:  None

Age at Entry:  24			Years Contracted:  4 

Education Level:  09			AFQT:  52

Highest Rate:  QM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.86 (3)	Behavior:  3.93 (3)		OTA:  4.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, BATTLE"E", Pistol Sharpshooter

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 3630620.

Chronological Listing of Significant Service Events:

920904:	Reenlisted at SSC NTC Orlando, FL for 4 years.

940525:	Applicant evaluated as an outpatient in the Mental Health Clinic, Naval Hospital, Charleston, SC.  Diagnosis Adjustment disorder with depressed mood; marital problems.  Applicant placed on 6 months limited duty. 

941028:	NJP for violation of UCMJ, Article 112a: Wrongfully use marijuana, a schedule IV controlled substance.
	Award:  Forfeiture of $636.00 pay per month for 2 months, restriction onboard Naval Station for 45 days, extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.
	Note: In accordance with the U.S. vs Booker 3MJ443 member was afforded his right to speak to an attorney.  Member did not desire to speak to an attorney.  Member did not demand trial by court-martial.

941103:	DAAR indicate cocaine abuse as a result of a random urinalysis, found dependent on alcohol, not dependent on drugs, recommended for separation via VA Hospital.

941104:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

941104:	Applicant advised of his rights and having elected 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.

941110:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments (verbatim):  [QMSN C_ (Applicant) is being processed by reason of misconduct due to drug abuse as evidenced by nonjudicial punishment on 29 October 1994 for violation of the UCMJ, Article 112a, wrongful use of cocaine, a schedule II controlled substance.  Naval Station, Charleston, South Carolina, fully supports the Navy’s policy of “zero tolerance” on drug abuse and recognizes that drug abuse is incompatible with the discipline, and readiness, and is destructive of Navy efforts to instill pride and promote professionalism.  QMSN C _ (Applicant’s) use of drugs will not be tolerated.  Navy drug abuse policy mandates administrative separation processing for personnel who commit an initial drug offense.  I strongly recommend that QMSN C_ (Applicant) be expeditiously separated from the naval service under other than honorable conditions.]

941130:	BUPERS 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 941202 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).

Issues 1 and 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.  While he may feel that his diagnosed adjustment disorder was a contributing factor, it does not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  Furthermore, the Board disagrees with the Applicant’s assertion that his overall service record warrants an honorable discharge. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure of that expected of a Sailor.  His service record is marred by cocaine use and award of non-judicial punishment (NJP) for illegal drug use thus substantiating the misconduct for which he was separated.  It must be noted that most Sailors 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.  An upgrade to honorable conditions 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 any verifiable documentation of good character and conduct to mitigate his 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.  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