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

 ex-HTFA, USN
Docket No. ND02-01291

Applicant’s Request

The application for discharge review, received 20020910, 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 listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030812.  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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  (Equity Issue) This former member requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Applicant’s DD Form 214
Letter of appreciation, dated May 9, 2002
Certificate of appreciation, dated May 15, 2002
Recommendation letter, dated February 4, 2002
Recommendation letter, dated June 18, 2002
Employment verification, dated May 11, 2001
Affidavit of experience from February 25, 2002 to April 7, 2002
Affidavit of experience from February 18, 2002 to May 19, 2002
Plumber trainee certificate renewal notice dated February 19, 2002
Plumber trainee certificate renewal notice dated February 21, 2001
Affidavit of experience from April 3, 2000 to March 25, 2001
Affidavit of experience from October 3, 2000 to February 4, 2001

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960307 - 960825	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  960828		Date of Discharge:  990831

Length of Service (years, months, days):

	Active:    03  00  04
	Inactive:  None

Age at Entry:  17			Years Contracted:  4

Education Level:  12			AFQT:  42

Highest Rate:  HTFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  3.00 (1)		OTA:  2.83

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, SSDR, NER

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

990505:	NJP for violation of UCMJ, Article 86: Absent from unit on 990502.
	Award: Forfeiture of $150 per month for 1 month.  No indication of appeal in the record.

990505:	Retention Warning: Advised of deficiency (Unauthorized absence as evidenced by your Commanding Officer’s nonjudicial punishment imposed on 990505.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

990608:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 990601, tested positive for THC.

990617:	NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana on 990601.
	Award: Forfeiture of $538 per month for 2 months, restriction and extra duty for 45 days, reduction to HTFA.  No indication of appeal in the record.

990623:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.  Recommend early intervention.  Applicant has indicated a lack of motivation for such intervention.

990720:	Drug and Alcohol Abuse Report: Marijuana abuse.  Random urinalysis 990623.  Clinical psychologist found Applicant not dependent and recommended separation not via VA hospital.  Commanding Officer recommended separation not via VA hospital.

990728:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse.

990728:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

990819:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse.

990824:	COMCARGRU THREE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990831 under other than honorable conditions for misconduct due to a pattern of misconduct (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).

In the Applicant’s issue 1, the Board found that the documentation provided listing the applicant’s post-service accomplishments was insufficient to warrant an upgrade of his discharge.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity existed in this case.  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.  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 can be considered.  Examples include documentation such as educational pursuits, verifiable employment record(s), documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle.  At this time, the applicant has not provided sufficient documentation for the Board to consider.  Therefore, no relief will be granted.

The applicant is reminded that he is eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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