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Docket No. ND04-00591

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

ex-STGSN, USN
Docket No. ND04-00591

Applicant’s Request

The application for discharge review was received on 20040227.  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 did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant 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 did not respond

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041001.  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.  “I did make a huge mistake, which resulted in being discharged under O.T.H. Conditions.  I regret it, and I have been punished for it for fourteen years.

I am requesting this change because I feel like I have been punished enough.  I have come a long way since then w/ a degree from OSU university a 12 year marriage, and two kids.

I was recently laid-off and will have to find a new career.  I don’t want a mistake that I made as a kid to affect my families ability to earn a living.

I greatly appreciate your consideration.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	871110 - 880216	COG
	Active:   USN			

Period of Service Under Review:

Date of Enlistment:  880217		Date of Discharge:  900808

Length of Service (years, months, days):

	Active:    02  05  12
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 (24 months extension)

Education Level:  10			AFQT:  68

Highest Rate:  STG3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.46 (3)	Behavior:  2.84 (3)		OTA:  3.46

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

880301:	DAAR indicates Applicant had positive entry level urinalysis for THC, issued Page 13.  Will undergo mandatory urinalysis once a month during pre-accession training.

880316:	Applicant identified as a drug abuser through urinalysis testing, placed on a drug urinalysis surveillance program.
	
890405:	Retention Warning:  Advised of deficiency (Failure to meet the weight/body fat requirement as outlined in OPNAVINST 6110.1C or as specifically listed below: Percent Body Fat and 1.5 mile run), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900122:	NJP for violation of UCMJ, Article 92: (3 Specifications), Failure to obey a lawful order/regulation.
	Award:  Reduction to E-3 (suspended for 6 months).  No indication of appeal in the record.

900227:	Retention Warning:  Advised of deficiency (Failure to meet the weight/body fat requirement as outlined in OPNAVINST 6110.1D or as specifically listed below: Overweight, second cycle), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900425:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
Award:  Forfeiture of $444.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

900605:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense due to drug abuse as evidenced by all drug incidents in your current enlistment.

900606:	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.

900703:	Medical evaluation for drug abuse found the Applicant to be a drug abuser. 

900712:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.
 
900718:	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 19900808 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:  There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  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.   As of this time, the Applicant has not provided any documentation for the Board to consider.  

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 15560A), Change 11, effective 
14 Jun 90 until 14 Aug 91, 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.