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

FOR OFFICIAL USE ONLY

 ex-ADAA, USN
Docket No. ND06-00310

Applicant’s Request

The application for discharge review was received on 20051212.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061103.  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 General (Under Honorable Conditions) by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the attached letter: 

“RE: U.S. Naval Discharge Upgrade

Dear Representative:

I had the privilege of serving my country in the United States Navy from February, 1997 through April, 1999.  During this time, I was assigned as an Aviation Machinist Mate at HSL-42 in Naval Station Mayport.  It was with great honor and pride that I carried my duties as a naval mechanic.

I have applied my technical learning in day-to-day projects and assignments.  I would like to continue utilizing the skills and knowledge that I have acquired in the U.S. Navy in a higher capacity.  My goal is to pursue career advancement and opportunities in this field.

At the present time, however, I feel that my discharge classification may impede me from furthering my career.  I respectfully request that a discharge upgrade from General (Under Honorable Conditions) to Honorable Discharge be reflected in my records.

Your time and consideration in this important matter is greatly appreciated.  Please do not hesitate to contact me at the above telephone number if you should have any questions or need additional information.

Sincerely, [signed] D_ O_ (Applicant)”

Documentation

Only the service and medical records were reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19970131 - 19970218	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19970219		Date of Discharge:  19990429

Length of Service (years, months, days):

	Active:    02  02  11  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19 

Years Contracted:  4 (12-month extension)

Education Level:  12				AFQT:  47

Highest Rate:  ADAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*		Behavior:  NA*		OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Marksman Rifleman Ribbon, Expert Pistol Shot Medal

* Not Available

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events: 

990329:	NJP for violation of UCMJ, Article 112a:  Wrongful use of controlled substance.
Award:  Restricted to HSL-42 and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

990429:	DD Form 214: Applicant discharged with a general (under honorable conditions) by reason of misconduct due to drug abuse, authority: MILPERSMAN 3630620. 

Service Record did not contain the Administrative Discharge package.
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990429 by reason of misconduct due to drug abuse (A and B) with a service characterization of general (under honorable conditions).  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).  The Board presumed regularity in the conduct of governmental affairs (E).

In the absence of a complete discharge package, the Board presumed that the Applicant was properly notified, processed, and discharged in accordance with MILPERSMAN 1910-146 (formerly 3630620).  The Applicant bears the burden of overcoming this presumption of regularity by presenting any substantial and credible evidence.  The Applicant did not provide any documentary evidence to challenge the propriety or equity of the discharge.  Therefore, the Board considered the Applicant’s discharge proper and equitable.  Relief not warranted.

The Applicant requests an upgrade to Honorable.  Whenever a member is involved in misconduct due to drug abuse, on the first offense, commanders shall process the member for administrative separation.  There is clear evidence in the service record that the Applicant used illegal drugs.  Indeed, the Applicant received nonjudicial punishment on 19990329 for violation of UCMJ Article 112a Wrongful use of controlled substance.  Violation of Article 112a is a serious offense for which a punitive discharge is authorized under Appendix 12 of the Manual for Courts-Martial (B) and typically warrants a characterization of service as under other than honorable conditions.  This conduct, which forms the primary basis for determining the character of service, falls well below that required for an upgrade in characterization of service.  Relief not warranted.

The Applicant requests an upgrade in order to “pursue career advancement and opportunities.”  The Applicant is advised that 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 or enhancing employment and educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

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 post-service accomplishments or any other evidence related to the discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a Wrongful use of controlled substance.

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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