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

ex-GMTSN, USN
Docket No. ND01-00113

Applicant’s Request

The application for discharge review, received 001031, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing before a travel panel closest to Battle Creek, Michigan 49015.  The applicant listed a civilian counsel as the representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  Subsequent to the application, the applicant obtained the American Legion as the representative.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 010508.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned an inequity, but no impropriety in the characterization of the applicant’s service.  The Board’s vote was 3 to 2 that the discharge shall change to:  UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (Equity issue)  His single violation of the UCMJ notwithstanding, this former member avers that his overall service record is sufficient to warrant release under honorable conditions.

2.  (Equity issue)  As evidenced by his supporting documentation, this former member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	840618 - 840814	COG

Period of Service Under Review:

Date of Enlistment:  840815		Date of Discharge:  870410

Length of Service (years, months, days):

	Active:    02  07  26
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  54

Highest Rate:  GMT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)		Behavior:  3.40 (2)		OTA:  3.50

Military Decorations:  None

Unit/Campaign/Service Awards:  NER 

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

840820:	Applicant briefed on Navy's policy on drug and alcohol abuse.

861217:	NAVDRUGLAB, San Diego, CA reports applicant's urine sample received 861210, tested positive for THC.

861219:	Applicant's statement: “As long as I've been in the Navy I have not used drugs.  Not with my rating, I know better.”

861219:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance between 6Nov86 and 5Dec86, to wit: marijuana.
	Award: Forfeiture of $392 per month for 2 months, restriction and extra duty for 45 days, reduction to GMTSN.  No indication of appeal in the record.

861230:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

870105:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

870127:	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 by a vote of 2 to 1 recommended discharge under other than honorable conditions.  Dissenting members statement: "I (name deleted), recommend discharge from the Naval Service under General conditions for GMTSN (applicant). The testimony and records at his administrative board convinced me that GMTSN (applicant's) performance has been acceptable in all other respects.  I have acted as Senior Member and President on numerous administrative discharge boards over the past several months.  Virtually all of these boards have involved drug abuse in some manner and none have resulted in a recommendation for an Other Than Honorable Discharge.  In the interest of consistency, I voted for a General Discharge."

870227:	Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.

870302:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). 

870326:	CNMPC 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 870410 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, and in conjunction with the factors listed in paragraph 9.3 of reference (a), it was determined that relief is warranted under equitable grounds even though the discharge was determined to have been otherwise equitable and proper at the time of issuance (C and D).

In the applicant’s issue 1, the Board found that the applicant had a pre-service drug waiver to enter the military.  The applicant was briefed on the Navy’s policy on drug and alcohol abuse on 840820.  The applicant was brought to CO’s NJP for wrongful use of marijuana and then was administratively processed for separation.  The applicant had an Administrative Discharge Board on 870127 that found he had committed misconduct due to drug abuse, that the misconduct warranted separation, and by a vote of 2 to 1, that the discharge characterization should be under other than honorable conditions.  The CO concurred with these findings and CNMPC directed the discharge for misconduct due to drug abuse.  The Board found that the applicant’s misconduct outweighed the positive aspects of his service and that he was equitably discharged at the time for the offense committed.  No relief will be granted based on this issue. 

In response to the applicant’s issue 2, the Board found that the applicant’s post service conduct was sufficient to warrant an upgrade to under honorable conditions (general).  The applicant suffers from blindness and traumatic brain injury, resulting from a post-military service automobile accident.  These facts are supported by official documentation contained in the applicant’s record.  The Board found that the applicant is overcoming his disabilities and is performing at his highest possible potential.  He has maintained employment, and has had no involvement with civil authorities.  The Board therefore voted 3 to 2 to grant relief to the applicant and upgrade his discharge to under honorable conditions (general).

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560), Change 7/86, effective 
15 Dec 86 until 14 Jun 87, 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