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Docket No. ND03-00670

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

 ex-SA, USNR
Docket No. ND03-00670

Applicant’s Request

The application for discharge review was received on 20030227.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040205.  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 stated

Applicant’s issues, as stated on the application:

1.  “Back in 1988, I was in the Active Reserves in the U.S. Navy.  At the time, I was 22 years old, and I was young and dumb.  I didn’t care about much except for myself.  Unfortunately, I got mixed up with some drugs, and got caught on a urinalysis.  As a result, I was given an Other Than Honorable discharge from the U.S. Naval Reserves.  This is a mistake that has followed and haunted me ever since.
I am now much older and wiser, and am getting my life on track.  I am married, with two children, and I have never been in trouble with the law.  I am currently enrolled in ITT Technical Institute where I am earning an ‘A’ average for the first four quarters.  I am very involved in my local church, and I help with some local charities on occasion.
It would certainly boost my position with future employers if I didn’t have an Other Than Honorable Discharge on my record.  I respectfully request you consider changing my discharge to Honorable.  I have submitted character references from some of my friends, professors, and members of my clergy.

J_ W_ W_ 21 May ‘02”

Additional issues submitted by Applicant’s counsel/representative (Veterans of Foreign Wars):

2.  “Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on Sep 17, 2003 and the following comments are hereby submitted:

We concur with the Applicant’s contentions that his discharge should be upgraded.  He has express regrets for his mistakes while on active.  We ask the board to please consider his post service character and conduct in your decision.

We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrading his discharge to honorable.”

Documentation

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

Applicant’s DD Form 214
ADA County Sheriff’s Office police record check, dated April 24, 2002
Character reference, dated March 13, 2002
Character reference, dated March 1, 2002
Character reference, dated March 3, 2002
Character reference from Reverend, Golden Thread Grove Church – ATC, dated April 18, 2002
Character reference, dated March 22, 2002
Character reference, undated
Character reference, dated March 7, 2002
Character reference, dated March 8, 2002
Character reference, dated March 2, 2002
Memorandum for record, dated March 18, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  850321		Date of Discharge:  900131

Length of Service (years, months, days):

	Active:    02  09  02
	Inactive:  02  01  08

Age at Entry:  19			Years Contracted:  8

Education Level:  12			AFQT:  79

Highest Rate:  RM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (5)	Behavior:  3.80 (5)		OTA:  3.76

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (2)

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:

850807:	Applicant commenced 36 months active duty under active marine program.

850813:	Applicant briefed on Navy's policy of drug and alcohol abuse.

880508:	Applicant released from active duty and transferred to USNR with reserve obligation term date of 930320.

890211:	Report of urine sample test: Positive for THC/amphetamine/ methamphetamine.

890319:	Applicant advised identified as a drug abuser through urinalysis testing and placed on a drug urinalysis surveillance program.

890322:	Drug and Alcohol Abuse Report: Amphetamines abuse, ashore off duty.  Random urinalysis 890211.  Commanding Officer recommends retention and Level I treatment.  Comments: Service member has consistently proven himself a highly motivated and conscientious performer.  He has maintained 100% drill attendance since affiliation with the command and is an excellent work contributor.  This command feels he has positive potential for good future growth, and recommends retention at this time.  He has been counseled and placed on a six (6) month probationary period.

890408:	Report of urine sample test: Positive for amphetamine/methamphetamine.

890509:	NAVDRUGLAB, Great Lakes, IL, reported Applicant’s urine sample, received 890408, tested positive for amphetamine/methampetamine.

890511:	Drug and Alcohol Abuse Report: Amphetamine abuse, ashore off duty.  Surveillance urinalysis 890408.  DAPA found Applicant dependent and recommended separation.  Commanding Officer recommended separation.  Comments:  This is W_’s (Applicant’s) second confirmed drug positive.  No potential for further naval service.  Recommend administrative separation.

890515:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to failure to adhere to the guidelines in the Level I Regimen as a result of a drug abuse as evidenced by a positive urinalysis test on 11 February and 8 April 1989.

890523:	Applicant advised of rights and having elected not 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.

900112:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

900123:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900131 under other than honorable conditions for misconduct due to drug abuse (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 youth and immaturity 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 service record is marred by illegal drug use.  Additionally, 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.  

Issue 2:  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, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   At this time, the Board determined that the documentation submitted by the Applicant does not 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 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, 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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