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Docket No. ND05-00528

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

 ex-AR, USN
Docket No. ND05-00528

Applicant’s Request

The application for discharge review was received on 20050203.  The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions) and the reason for the discharge be changed to “satisfactory”.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050519.  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 and the reason for 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 am respectfully requesting an upgrade because I’m just trying to get a better job.  I’m in the security field and I want to obtain clearances.  Thank you”

Documentation

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

Letter from Department of Veterans Affairs, dated March 21, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960920 - 961023	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  961024		Date of Discharge:  970516

Length of Service (years, months, days):

	Active:    00  06  13
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  61

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB			Behavior:  2.00 (1)		OTA:  2.00

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, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

970206:	Alcohol Treatment Facility evaluation:  Underage drinking incident, no ETOH abuse or dependence.  Recommendation: IMPACT.

970213:	NAVDRUGLAB, Great Lakes, IL, reported Applicant’s urine sample, received 970124, tested positive for THC.

970304:	NJP for violation of UCMJ, Article 112a:  Substance abuse.
	Award:  Forfeiture of $400 per month for 2 months, restriction for 60 days, reduction to E-1.  Applicant was already an E-1.  No indication of appeal in the record.

970325:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse as evidenced by all incidents of drug abuse in the current enlistment.  Applicant notified that if separation is approved, the least favorable characterization of service possible is under other than honorable conditions.

970325:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

970409:	Alcohol Treatment Facility evaluation: Applicant found not to be drug or alcohol abuse/dependent.  Recommendation: IMPACT.

970410:	Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, ashore off duty.  Random urinalysis 970124.  CAAC recommended Level I treatment.  Physician found Applicant not dependent and recommended Level I treatment.  Commanding Officer recommended separation.  Comments: This incident Applicant was charged with illegal use of a controlled substance.  Applicant was diagnosed as neither dependent or abusive.  No treatment required.  Applicant has no potential for further service.  Recommend handle in accordance with 5350.4B.

970417:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

970501:	Chief of Naval Education and Training 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 19970516 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 impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by illegal drug use and underage drinking.  This misconduct resulted in nonjudicial punishment proceedings for violations of UCMJ Article 112a.  The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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.  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 14, effective 
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - DRUG ABUSE.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review 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.