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

Docket No. ND02-01256

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

 ex-SKSN, USN
Docket No. ND02-01256

Applicant’s Request

The application for discharge review, received 020904, 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 030620.  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.  To Whom it May Concern:

I am submitting a request that my discharge be upgraded from a general under honorable to an honorable discharge due to the fact of my exemplary record and my evaluation of work performance.  I came in as an E-3 and made E-4 within one year.  My first evaluations were all 4.0. I am respectfully asking that the review board to reconsider this matter.  Because of the status of my discharge, I am unable to use the G.I. Bill, which I paid $100.00 a month out of my check for a total of 12 months starting when I was in boot camp.  I plead guilty to a cocaine possession charge to receive a probation before judgment sentence.  I was arrested having sex with a known prostitute who had drugs on her at the time and was found in the car.  In order to avoid a possible conviction for drug possession I was advised by my lawyer to plead guilty and if I stayed out of trouble I it would be taken of my record.  I stayed out of trouble and the conviction was expunged for me record.  I never was drug tested nor did I admit to using drugs at that time.  I was discharged from the Navy because of my pleading guilty I was told.  Granted, the circumstances of my discharge was warranted; however, I feel that I should have been honorably discharged, or at the very least, given use of the G.I. Bill.  I have re-entered college and would like to take advantage of the G.I. Bill that was made available to me at that time.  If you do not see fit to grant me an honorable discharge, then at least I would like for you to consider reimbursing me the money that I put into the G.I. Bill so that I can continue my education and obtain a four-year college degree.  I am currently at North Carolina Central and plan to enroll at Howard University in January of 2003.  Thank you,

R_ H_ 

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	911108 - 920518	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  920519		Date of Discharge:  940513

Length of Service (years, months, days):

	Active:    01  11  25
	Inactive:  None

Age at Entry:  30			Years Contracted:  4 

Education Level:  12			AFQT:  68

Highest Rate:  SK3

Final Enlisted Performance Evaluation Averages (number of marks):

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

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM, .45 CAL Pistol Expert, SSDR

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:

940215:	Norfolk, VA, police were dispatched to investigate a suspicious automobile and individuals.  Police found SKSN H_ and a civilian female in the car with drug paraphernalia.  After a search of the vehicle, they found two small quantities of cocaine.  Both individuals were taken into custody.  Applicant is being prosecuted by the City of  Norfolk, VA on a warrant for possession of cocaine.  His trial is scheduled for 940506. 

940308:	Retention Warning:  Advised of deficiency (Indebtedness; writing bad checks), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

940310:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by being charged with a warrant for cocaine possession by the City of Norfolk, VA.

940310:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

940311:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 940216-940218 (2 days/S), violation of UCMJ, Article 134: Check, worthless, making and uttering by dishonorably failing to maintain funds.
	Award:  Restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

940412:	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).

940413:	Psychiatric/Medical evaluation:  Member denies ever using cocaine, marijuana, or other illicit drugs.  Member denies homicidal or suicidal ideation.  No diagnosis.  Member is not a danger to himself or others.

940414:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (possession).

940504:	BUPERS directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to drug abuse (possession).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 940513 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 did possess illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  The Board’s regulations limit its review to a determination on the propriety and equity of the discharge.  The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Relief denied.

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.  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.
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