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Docket No. ND03-00044

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

ex-ATAN, USN
Docket No. ND03-00044

Applicant’s Request

The application for discharge review, received 20021004, 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.  In the acknowledgement letter to the Applicant, he was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area.  Applicant responded that he would not appear for a personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 200030828.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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.  To the Review Board,

I have requested that you review my character of service, which is listed on my last DD 214 as "Under Other Than Honorable Conditions".  I served in the US Navy from 1978 to 1989 and with the exception of the following five (5) incidents my character of service could be considered to be excellent. The first incident occurred while I was in school at Memphis, TN.  It was my first time away from home, and I was five (5) minutes late for school on one (1) occasion.  Because of this I received Captains Mast as my Non-Judicial Punishment.  I take full responsibility for this, and ask that you consider my age, and level of maturity when you review the records dealing with this incident. My second incident of Non-Judicial Punishment occurred during my first tour in the fleet.  I came about as a result of my conduct on a beach in St. Thomas.  Alcohol was a factor in this incident, but the decision to drink to excess was my own.  I had a screening with the Executive Officer of the command (XO Screening), and he handed down the punishment for my actions. My third incident was again for being late, this time I was late for duty.  I do not recall all of the circumstances surrounding this particular incident, but I believe that I was late returning from vacation.  Again I would ask that you consider my age and maturity level, when you review the records from this incident. My fourth and fifth incidents of Non-Judicial Punishment were for testing positive for THC and Cocaine (in this order).  I would like to ask that you again consider my age and level of maturity at the time of these occurrences.  I am not asking that you use them as an excuse, just that you consider them in making your decision.  I would also like to add that during the time of these last two (2) incidents I was married, and under a lot of stress.  We had just lost a child to a tubular pregnancy, this along with the stresses incurred by being married and my being on active duty in the Navy, had left my marriage in disarray.  At this time every thing just seemed so hopeless for my wife and 1, and our marriage was suffering because of this.  I am not asking that you excuse my decisions or my behavior because of the stresses of my job and my marriage.  I would only ask that you take them into consideration when you review my request. I now have a daughter who is depending on her father to do what is best for her, now and in the future.  I believe that if you would upgrade my discharge to an Honorable, that this would allow me to get a better job, with better pay.  This in turn would allow me to improve my chances of providing for a bright and promising future for my daughter. I am sincerely grateful that you have allowed me the opportunity to petition you to upgrade my discharge, and if there is any additional information that you require from me for your consideration in making your decision.  Please feel free to contact me and let me know. Thank you for your time and understanding in this matter.  Sincerely,

Documentation

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

Letter of character reference from employed signed by Mr. G_ P_, and dated September 13, 2002.
Criminal History/Background Check from Lexington Police Department dated August 27, 2002.
Certificate for training from The National Association of Radio and Telecommunications Engineers, Inc., dated November 3, 1989.
Certificate of training from Keystone International, dated January 6, 2001.
DD 214 for period of service in the US Navy from February 13, 1978 to September 20, 1983 showing Honorable character of service.
DD 214 for period of service in the US Navy from September 21, 1983 to August 28, 1986 showing Honorable character of service.
Notice of discharge because of misconduct for AT3 (Applicant), dated September 1988.
Letter of citation from the Secretary of the Navy to the USS John F. Kennedy (CV 67) and embarked units.
Certificate of Seahawk Safety Award to AT3 (Applicant), dated January 27, 1981.
Certificate of Seahawk Safety Award to AT2 (Applicant), dated April 1, 1982.
Letter awarding AT3 (Applicant) the award of Meritorious Unit Commendation from the Commanding Officer, Naval Air Station Oceana, dated July 29, 1985.
Letter of citation from the Secretary of the Navy to Naval Air Station, Oceana, Virginia Beach, Virginia for the Meritorious Unit Commendation.
Letter from the Commanding Officer, USS John F. Kennedy (CV 67) toAT3 (Applicant) thanking him for his role in helping the USS John F. Kennedy receive the award of the Battenburg Cup Award, dated February 1, 1984.
Copies of US Naval Service Enlisted Performance Records, and Enlisted Performance Evaluations for (Applicant) for his period of active Naval service (22 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   USN			780213 - 830920	HON
		   USN			830921 - 860828	HON

Period of Service Under Review:

Date of Enlistment:  860829		Date of Discharge:  880912

Length of Service (years, months, days):

	Active:    02  00  14
	Inactive:  None

Age at Entry:  28			Years Contracted:  6

Education Level:  12			AFQT:  65

Highest Rate:  AT2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (2)	Behavior:  3.60 (2)		OTA:  3.70

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, SSDR, GCM

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:

880115:	Applicant successfully completed NADSAP.

880513:	NAVDRUGLAB, Norfolk, VA reported Applicant's urine sample, received 880502, tested positive for cocaine.

880602:	NJP for violation of UCMJ, Article 112A: Wrongful use of cocaine.
	Award:  Forfeiture of $587 per month for 2 months, restriction and extra duty for 45 days, reduction to AT3.  No indication of appeal in the record.

880602:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive result in a unit sweep conducted on 2 May 1988.

880602:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

880709:	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 other than honorable conditions.

880726:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent. 

880811:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

880901:	CNMPC 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 19880912 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:  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 immaturity and marital problems were contributing factors, they do 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.  His last enlistment is marred by award of non-judicial punishment (NJP) for illegal drug use.  The last NJP for illegal drug use is the only punishment used to characterize the Applicant’s enlistment and not the previous four.  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. 

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment 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.  However, the NDRB did note an administrative error on the original DD Form 214 and corrected it to reflect the Applicant’s previous eight years of honorable service.

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.   

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560A), effective  15 Jun 87 until 
10 Jan 89, 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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