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

ex-MM3, USN
Docket No. ND01-00642

Applicant’s Request

The application for discharge review, received 010411, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Secretarial Authority.  The applicant requested a documentary record discharge review.  The applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011031.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety or inequity in the characterization of or reason for the applicant’s service.  The Board’s vote was unanimous that the character of and reason for discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I was discharged for a crime that I did not commit.  I never used Marijuana.

2.  Throughout my discharge proceedings, I did not receive proper representation.

3.  I was never provided the lab reports that were used against me.

4.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

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
Letter from applicant's mother
Letter from accredited representative for American Legion
Character reference from Assistant General Manager, Saltgrass Steakhouse
Letter from Member of Congress dated January 30, 2001 with enclosure
Letter from applicant's mother to senators dated January 1, 2001
Newspaper article (Fort Worth Star - Telegram January 1, 2001)
Letter to representative from applicant's mother dated January 21, 2001
Letter from applicant's mother dated January 17, 2001
Letter to representative from applicant's mother dated December 11, 2000
Letter to applicant's mother from Member of Congress dated December 21, 2000
Excerpt 3-4 through 3-8
Copy of National Center for Policy Analysis, Idea House
Letter from Commanding Officer to applicant's mother dated January 5, 2001
News article from intranet dated December 7, 2000
Copy of Frequently Asked Questions , Navy Drug Screening Laboratory, San Diego
Copy of appeal submitted August 16, 1999, decided March 22, 2000
Copy of citation
Copy or evaluation report and counseling record for 99May15 to 00Mar15
Letter from Manager of Member Development dated May 12, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   USN			970911 - 000111	HON
	Inactive: USNR (DEP)	970122 - 970910	COG

Period of Service Under Review:

Date of Enlistment:  000112		Date of Discharge:  001127

Length of Service (years, months, days):

	Active:    00  10  16
	Inactive:  None

Age at Entry:  21			Years Contracted:  6

Education Level:  12			AFQT:  86

Highest Rate:  MM2

Final Enlisted Performance Evaluation Averages* (number of marks):

Performance:  3.00 (1)	Behavior:  4.00 (1)		OTA:  3.57

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*Evaluation covers part of previous enlistment (only found in supporting documents).

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

001024:	NAVDRUGLAB, Jacksonville, FL, reports applicant's urine sample, received 001016, tested positive for THC.

001027:	NJP for violation of UCMJ, Article 112A: Wrongfully used a controlled substance, to wit: marijuana on 10Oct00.
	Award: Forfeiture of $750 per month for 2 months, restriction for 60 days, reduction to MM3.  No indication of appeal in the record.

001101:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

001101:	Applicant advised of his rights and having elected not to consult 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.

001106:	Commanding officer recommended 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 001127 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).

Issue 1.   The applicant’s positive urinalysis is proper grounds for constituting a violation of Article 112a of the UCMJ, and subsequent finding of guilty at Captain’s Mast. Drug abuse warranted processing for separation, normally under other than honorable conditions.  The discharge was proper and equitable.  Relief denied.

                        Issue 2.  The Board found no evidence that the applicant’s discharge was improper.  On 001101 the applicant was advised of his rights and having elected not to consult 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.  Relief denied.

	Issue 3.  The Board presumed regularity in the conduct of the applicant’s Captain’s Mast held on 001027.  The applicant did not present evidence of sufficient credibility to overturn this presumption.  Relief denied.

Issue 4. The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 - 11 Feb 2001, 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 "afls10.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