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

ex-HN, USN
Docket No. ND00-00662

Applicant’s Request

The application for discharge review, received 000424, requested that the characterization of service on the discharge be changed to general/under honorable conditions and the reason for the discharge be changed to Convenience of Govt. RE-1.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 001206.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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 (verbatim)

1.  Dear D.R.B,

The following issues are reasons that I believe my discharge should be upgraded to Honorable.  The presumption of regularity that might normally allow you to assume that the U.S Navy acted correctly in characterizing my service as other than honorable does not apply to my case, based on the issues evidence that I am submitting.  My conduct and service during the first 3 years nine months of my enlistment, was above average (exemplary), resulting in consistent 3.8 - 4.0 evals, Letters of Commendation for jobs well done (Recruit Chief Petty Officer: Basic Trng., Class Adjutant: Hosp. Corps School), Letters of Recommendation (recommended highly by Senior Officers for special warfare and other specialized training) misc. Awards and Certificates for Physical Fitness and other participatory activities.  In addition to the above, my record of rapid advancement/promotions reflects that I was an exemplary service member.  This is supported by numerous favorable comments on my personnel evaluations.  After departing special warfare training due to persistent injuries and marital problems) had a abbreviated but successful (voluntary) tour with the 1st MARDIV.  Including but not limited to volunteering for every rigorous assignment possible, volunteering for and successfully completing the USMC Force Recon Qualifier test, typically completing all combat medic oriented courses at or near the top of my classes.  My N.J.P was conducted by a Lt.Col M_ (then Commanding Officer 1st MarDiv / 1st Battalion , 5th Marines in '94 ).  I explained to him the circumstances surrounding my incident and the "one time" nature of the incident), and made it very clear that although full responsiblity and accountability were mine and mine alone, the incident was in no way a reflection of my true character.  Upon hearing my statement and after review of my service record, LtCol M_ expressed his opinion that my one time incident of misconduct should in no way effect the character of my discharge or warrant a other than honorable discharge prior to my EAOS.  He then said that he was required to "award" me with something, so I was awarded a reduction in rate and fined some $ x 2 months.  I was not awarded a discharge of any kind, and the LtCol even made a point of saying that he didn't want to effect my discharge status based on this one time incident.  There was no Other than Honorable discharge awarded to me at my NJP.  Lastly, on a personal note:  I am extremely proud of my military service, my time in SEAL training, my work with a variety of USMC spec-ops units, and the extensive medical training that received in the Navy.  While in the Navy, I seized every opportunity that I could to better myself, challenge myself, and serve my country with an emphasis on volunteering for evolutions that no one else wanted.  I feel that for my service to be characterized as anything other than honorable is not doing my service justice.  With the above issues in mind , I respectfully request that my discharge status be upgraded to a discharge under Honorable conditions with an RE-1 code.

Documentation

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

Copy of DD Form 214
Statement from applicant
Ten pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	900515 - 900809	COG

Period of Service Under Review:

Date of Enlistment:  900810		Date of Discharge:  941021

Length of Service (years, months, days):

	Active:    04  02  12
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 (3 months extension)

Education Level:  16			AFQT:  91

Highest Rate:  HM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.74 (7)	Behavior:  3.74 (7)		OTA:  3.83

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, MUC

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:

900816:	Applicant briefed on Navy's policy on drug and alcohol abuse.

940523:	NJP for violation of UCMJ, Article 112A: Wrongfully use marijuana between 23Feb94 and 2Mar94, to wit: tested positive for THC in urine sample batch number B-641 specimen #11.
	Award: Forfeiture of $500 per month for 2 months, restriction and extra duty for 45 days, reduction to HN.  Restriction and extra duty suspended for 6 months.  No indication of appeal in the record.

940612:	Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.   

940705:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

950705:  	Applicant advised of his rights and having consulted 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.

940720:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding officer’s comments (verbatim): HN (applicant) transferred to this command on 940606 as a non-deployable corpsman from Battalion Landing Team 3/5 due to a pending legal action for a positive urinalysis for THC.  HN (applicant's) efforts under the direct supervision of the BAS staff has been acceptable; however, his behavior off duty indicates serious deficiencies in judgement, loyalty, maturity, and trustworthiness.  His continued service is contrary to the good order and discipline of this unit and the United States Navy.  My recommendation is that HN (applicant) be administratively separated from the United States Navy based on his use of an illegal drug.  I strongly recommend the characterization of his discharge be under other than honorable conditions.

940802:	SJA review determined the case sufficient in law and fact.

940907:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 941021 under other than honorable conditions for misconduct due to drug abuse (use) (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).

In response to the applicant’s issue, the Board found, concerning the applicant’s request for a change in the reason for discharge, that the summary of service clearly documents that drug abuse was the reason the applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the applicant was discharged.  To change the Narrative Reason for Separation would be inappropriate.  

Concerning the applicant’s request for an upgrade to his discharge, the applicant implies that a permissive doctrine exists whereby one in the military is allowed a "one time incident".  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military especially concerning drug abuse.  The Navy has long had a ‘zero tolerance’ policy toward members who abuse illegal substances.  Even though the applicant’s performance of duty while in the service has been noteworthy, the applicant is responsible for his actions and must accept the consequences of his misdeeds.  The Board will not grant relief on the basis of this issue.  Relief denied.

The applicant is reminded that he remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at a personal appearance hearing is highly recommended.  The possibility of favorable action in the applicant’s case will increase with the amount of time he maintains an alcohol and drug free lifestyle.  Verifiable documentation of such a lifestyle is essential.  The applicant is encouraged to continue his community service, remain sober, and apply for a personal appearance hearing prior to 21 October 2009. 

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