Author: CAP
Last saved by: shirley.robertson
Company: NCPB

Docket No. ND03-01439

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

ex-AR, USN
Docket No. ND03-01439

Applicant’s Request

The application for discharge review was received on 20030909.  The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a personal appearance discharge review before a traveling panel closest to Los Angeles.  The Applicant listed LA County Veterans Affairs as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040617.  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, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I was discharged due to a positive drug test.  At the time of my discharge I was only 19 years of Age.  I completed 17 months of service and had no previous problems with drugs.  I regret my mistake in judgement and I would hope that I can be considered for discharge upgrade
      Since my discharge I have work on a regular basis.  I have attended school and I have not used drugs or been arrested.  I will submit additional information regarding my upgrade request.”

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION."  None were found.

Applicant’s representative did not submitted any additional issues.

Documentation

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

Copy of DD Form 214
Applicants request to the NCPB for an extension, dated October 6, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	940621 - 941025	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  941026		Date of Discharge:  960401

Length of Service (years, months, days):

	Active:    01  05  06
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  80

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM with Bronze Star, SSDR

Days of Unauthorized Absence:  None

*No Marks Available for review

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

951129:	NAVDRUGLAB, San Diego/CA, reported Applicant’s urine sample, received 951122, tested positive for THC.

960118:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by NJP on 960110 for wrongful use of marijuana, in violation of Article 112a, UCMJ.

960110:	NJP for violation of UCMJ, Article 112a.  Wrongful use of marijuana on or about 951121.
	Award:  Forfeiture of $435.00 per month for 2 months, reduction to AR No indication of appeal in the record.

960118:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.

960131:	Medical evaluation for drug abuse found the Applicant to be drug dependent.

960206:	Applicant found dependent on alcohol and was offered treatment at a VA hospital nearest to home of record.  Applicant declined.

960221:	Commanding Officer, FITRON TWO ONE THREE, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments:  AR D_ (Applicant) was found alcohol dependent and waived his right for VA treatment on 960208.  In compliance with the navy’s zero tolerance drug policy, I recommend AR D_ (Applicant) be processed as soon as possible under other than honorable conditions.

960318:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960401 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:  The Applicant states his discharge was based on one isolated incident in “17 months.”  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order 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.  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 his 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, 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.  

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, 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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