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

 ex-CTOSA, USN
Docket No. ND00-00731

Applicant’s Request

The application for discharge review, received 000517, requested that the characterization of service on the discharge be changed to honorable.  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 001214.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I think I was punished throughly and it shouldn't effect the rest of my life.  I don't think one mistake in almost 3 years of impecable sevice warrants a discharge that will affect everything I try to do or accomplish.

2.  A three member Administrative board consisting of a LCDR, LT, and a warrant officer (2 of which were prior enlisted) requested I stayed in the Navy.  I don't think a sailor that wasn't thought to be serving his country honorably would have recieved a unanimous decision by the board to retain him.

3.  Everyone has a right to redeem themselves.  I will never be able to serve in the NAVY no matter how badly I want to, so this is my only shot a making good for my self and my chain of command who stood behind me the whole way.

Documentation

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

Copy of DD Form 214
Copy of Navy and Marine Corps Achievement Medal certificate
Copy of citation
Copy of memorandum dated April 2, 1998
Copy of letter of appreciation dated December 10, 1997
Copy of Evaluation Report and Counseling Record for 16Jul97 to 15Jan98 and 14Feb97 and 15Jul97
Character reference dated February 24, 1999
Character reference dated February 24, 1999
Character reference dated February 24, 1999
Character reference dated February 24, 1999
Statement from applicant
Character reference dated February 24, 1999

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	961023 - 961106	COG

Period of Service Under Review:

Date of Enlistment:  961107		Date of Discharge:  990618

Length of Service (years, months, days):

	Active:    02  07  12
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  57

Highest Rate:  CTOSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (2)	Behavior:  4.00 (2)		OTA:  3.92	(5.0 evals)

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, NMCAM, NMCOSR, SSDR

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

991105:	NAVDRUGLAB, San Diego reports applicant's urine sample received 981029 tested positive for THC.

981202:	NJP for violation of UCMJ, Article 112A:  Wrongful use of marijuana on 29Oct98.
	Award: Forfeiture of $537.90 per month for 2 months, restriction and extra duty for 45 days, reduction to CTOSA.  No indication of appeal in the record.

981202:	Retention Warning:  Advised of deficiency (On 2 December 1998, you attended Commanding Officer's Nonjudicial Punishment, during which you were convicted for a violation of the UCMJ, Article 112A - wrongful use, possession, etc., of controlled substances.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

981208:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

981208:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

990225:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended retention.

990412:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding officer’s comments (verbatim): On 25 February 1999, I convened an administrative board to examine the circumstances surrounding CTOSA (applicant's) drug abuse charges and determine the proper course of action in accordance with reference (b).  CTOSA (applicant) was found guilty of drug abuse at NJP proceedings on 02 December 1998, and awarded appropriate punishment.  Additionally, CTOSA (applicant's) access to classified material was suspended on 09 November 1998.  The administrative board found that there was sufficient evidence of misconduct, but based on CTOSA (applicant's) otherwise outstanding service record, unanimously recommended retention.
	While I obviously concur with the board's findings regarding misconduct, I can not support their recommendation for retention.  In references (c) and (d), the Navy clearly established a "zero tolerance" drug abuse policy for all members.  CTOSA (applicant's) admitted drug abuse not only jeopardized his own health, safety and career, but publicly compromised the Navy's valued ideals of Honor, Courage and Commitment.  While the balance of his career may have been exemplary, this grievous error in judgment indicates a lack of dedication and the potential for future lapses.
	I believe CTOSA (applicant's) retention would only serve to cloud the CNO's anti-drug message, while administrative separation would reinforce it by showing that there is no leniency, not even for top performers, when it comes to drug abuse.  My troops are watching this situation closely, and are already questioning the board's recommendation.  I urge you to override the board's recommendation and administratively separate CTOSA (applicant) as soon as possible.

990511:	Chief of Naval Personnel forwarded recommendation for approval of discharge to Assistant Secretary of the Navy (Manpower and Reserve Affairs).

990520:	 Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved discharge general (under honorable conditions) by reason of misconduct due to drug abuse (use).

990527:	CNPC directed the applicant's discharge general (under 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 990618 general (under 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 the applicant’s issue 1, the Board found that the applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”.  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.  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.

In the applicant’s issue 2, although the Administrative Discharge Board may have voted unanimously to retain the applicant, the Board’s vote was only a recommendation.  The Commanding Officer did not concur with this and sent his recommendation to NMPC for administrative separation under other than honorable conditions.  The final discharge authority was the Assistant Secretary of the Navy (Manpower and Reserve Affairs) who directed the applicant be discharged, but provided leniency by authorizing a general (under honorable conditions) characterization.  Members separated for misconduct due to drug abuse are normally separated under other than honorable conditions.  No relief granted.

In the applicant’s issue 3, there is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any post service documentation of good character and conduct.  The applicant was discharged 990618 and the additional documentation provided were letters for the purpose of the Administrative Discharge Board held in 9902.  This Board reviewed this documentation as part of the applicant’s official service record.  No relief will be granted based on post service conduct.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

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.  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