Author: CAP
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Docket No. ND02-01257

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

 ex-EMFA, USN
Docket No. ND02-01257

Applicant’s Request

The application for discharge review, received 020904, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  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 030612.  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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I believe my discharge was inequitable because it was based on one incident and the rest of my service time was flawless.  I was young and had no idea of the consequences that layed ahead.  I now have a family and need a home of our son, but difficult in this day of age.  Thank you for your consideration on this matter & God bless.

Documentation

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

Copy of Enlisted Performance Evaluation Report (2 pages) 
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890801 - 900715	COG
	Active:   None			

Period of Service Under Review:

Date of Enlistment:  900716		Date of Discharge:  920511

Length of Service (years, months, days):

	Active:    02  09  25
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  50

Highest Rate:  EMFA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)	Behavior:  3.30 (2)		OTA:  3.50

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, JMUA, SASM, SSDR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

920302:	NJP for violation of UCMJ, Article 112a: Wrongfully use marijuana.
	Award:  Forfeiture of $440.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

920303:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

920303:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

920310:	Medical evaluation for drug abuse found the Applicant to be not drug dependent.

920330:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

920402:	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 920511 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).

Issue 1:  The Applicant states his discharge was based on one isolated incident.  Even though the civilian world treats some offenses with leniency because they are a first time incident on an otherwise clear record, the military does not view such offenses as minor infractions to maintain proper order and discipline.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable.   Relief denied.

Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing home buying opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.   Relief denied.

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.   

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), effective 15 Aug 91 until 04 Mar 93, 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/A9235/A9301/A9217/A9223/A9439/A9221