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

 ex-SM2, USN
Docket No. ND01-01009

Applicant’s Request

The application for discharge review, received 010730, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The applicant requested 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 020221.  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.       MY UNDESIRABLE DISCHARGE WAS EQUITABLE BECAUSE.  I HAD NOTHING TO DO WITH THE FABRICATION OF THE TELEFAX, OR THE BUPERS ORDERS SENDING ME TO WHITING FIELD.  SIR IMAGINE YOURSELF MAKING A TERRIBLE MISTAKE THAT COULD CAUSE YOU TO LOSE YOUR CAREER AND YOUR FAMILY WHEN IAM FINISH WITH THIS LETTER I HOPE YOU HAVE AN IDEA AND SOME COMPASSION OF WHAT I WENT THROUGH AND GRANT ME THE UPGRADE OF MY DISCHARGE.     AFTER MY CAPTAINS MAST WITHOUT ANY PROMISES OF BEING RETAINED IN THE NAVAL SERVICE I CONTINUED TO DO THE BEST JOB I COULD, I REPRESENTED THE COMMAND AT FUNERAL SEVICES SIDE BOYS AND RECEIVING OUTSTANDING ON COMMAND INSPECTIONS.  WHENEVER THE COMMAND HAD AN OFFICIAL VISIT FROM AIRFORCE OR NAVAL COMMANDERS OR CIVILIAN OFFICIAL I WAS ALWAY ASKED AND WANTED THE RESPONSIBILITY OF MAKING SURE EVERYTHING WAS IN ORDER.  BECAUSE OF MY IMPECCABLE APPEARANCE I ALSO PREFORMED SIDEBOY DUTIES.  I BECAME A-VITAL PART OF STUDENT CONTROL, MAKING SURE STUDENTS RECORDS WERE KEPT UP TO DATE ORDERS WERE RECEIVED AND DISTRIBUTE PAY CHECKS.     MASTER CHIEF L_ STATED IN MY DEFENSE AT MY ADMIN BOARD I RAN STUDENT CONTROL WHEN THE LEADING PETTY OFFICER WAS OUT OF THE OFFICE.  AS A PART OF HOLDING CO.  I WAS IN CHARGE OF MUSTERING HOLDING CO.  AND PREFORMING PERSONELL INSPECTION AND GIVING OUT WORK ASSIGNMENTS. AT THE END OF THE WORK DAY I MUSTERED HOLDING CO.  AGAIN AND LED THEM IN PHYSICAL EXERCISE WHICH IS A VITAL PART OF THERE LAW ENFORCEMENT SCHOOL.  KNOW ONE CAME UP TO ME AND TOLD ME I HAD TO DO THESE THINGS, I DID THEM BECAUSE OF DEDICATION TO COMMAND AND NAVAL SERVICE.  WHEN I HAD MY ADMIN BOARD IT SEEM LIKE THEY HAD ALREADY JUDGED ME AND MADE THERE DECISION BEFORE THE BOARD EVEN CONVENED.  THAT WAS ONE OF THE REASONS MY LAWYER WROTE HIS DEFICIENCY LETTER.  DURING MY BOARD THE COMMAND HAD NOTHING BAD TO SAY ABOUT ME EXCEPT FOR THE MATTER AT HAND.  ALL OF MY SUPERVISOR'S SPOKE ON MY BEHALF AND WHEN THEY WERE ASKED IF I SHOULD BE RETAINED THEY ALL SAID YES WITHOUT A DOUBT. WHEN THE BOARD RECOMMEND THAT I SHOULD BE DISCHARGED WITH AN OTHER THAN HONORABLE DISCHARGE THE COMMAND WAS SHOCKED I WAS SHOCKED, MY LAWYER WAS OUTRAGED (LETTER OF DEFICIENCY) EVEN AFTER THE BOARD DECISION I STILL MAINTAINED MY PROFESSIONALISM AND RELIABILITY(7MOS) AFTER THE FACT.    (IE.EVAL REPORT) WHEN THE LEGALMAN FOR THE COMMAND CAME UP TO ME AND SAID THAT I WAS GOING TO BE RETAINED AND SHOWED ME THE TELEFAX FROM PERS 83 I DIDNT QUESTION IT, MY THOUGHTS WERE THE COMMAND,MY LAWYER AND MY CORRESPONDENCE WITH MY CONGRESSMAN MADE THE DIFFERENCE AND THAT THEY WERE GOING TO GIVE ME ANOTHER CHANCE.  I WASNT GOING TO LET THEM OR MYSELF DOWN.  THE 3 MONTHS THAT I WAS AT WHITING FIELD I REDEDICATED MYSELF TO MY JOB,COMMAND AND TO THE PEOPLE AROUND ME.    WITHIN A MONTH I WAS RECEIVING NOTHING BUT PRAISE FOR THE JOB THAT I WAS DOING.  WHEN I WENT TO SEE THE COMMAND MASTER CHIEF FOR A REVIEW OF MY RECORD AND STATUS HE TALKED ABOUT AFTER 6 MONTHS OF GOOD CONDUCT WE WOULD SEE ABOUT MY REINSTATEMENT BACK TO FIRST CLASS.  MY FAMILY AND I HAD FINALLY GOT SETTLE INTO OUR NEW HOUSE AND THE KIDS INTO THERE NEW SCHOOL.  AFTER THREE MONTHS AT WHITING FIELD I RECEIVED A LETTER FROM THE COMMAND SAYING I HAD 15 DAYS TO PACK UP MY FAMILY, HOUSEHOLD GOODS AND PREPARE TO BE DISCHARGED.  THEY SAID THE REASON WAS THAT THE PERS (83) LETTER WAS FABRICATED AND I GUESS THEY THOUGHT I SOMETHING TO DO WITH IT BUT AFTER FURTHER INVESTIGATION IT WAS PROVEN THAT I HAD NOTHING TO DO WITH IT AT ALL BUT I WAS PUNISHED FOR IT ANYWAY BECAUSE IN LESS THAN TWO WEEKS I HAD TO ENDURE THE PHYSICAL AND MENTAL STRAIN OF KNOWING THAT I HAD DID NOTHING WRONG AND TRYING TO MOVE MY FAMILY OF FOUR IN LESS THAN TWO WEEKS BUT I DID AND FOR THE LAST 3 YEARS AND 8MOS I HAVENT HAD ANYTHING AS MINOR AS A SPEEDING TICKET.  THE ONLY THING I RESPECTFULLY REQUEST IS MY DISCHARGE BE UPGRADED TO HONORABLE SO I CAN HOLD MY HEAD HIGH AND BE PROUD TO BE A DESERT STORM VETERAN.

Documentation

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

Copy of DD Form 214
Telefax Communication Memo from Pers-83 dtd 25 Oct 96
Applicant's Voluntary Statement dtd 1 Apr 96 concerning the use of marijuana
Preliminary Inquiry Report dtd 3 Apr 96
Applicant's Order to Restricted Status dtd 3 Apr 96 (unsigned)
Counseling and Assistance Center (CAAC) Preliminary Evaluation report dtd 20 May 96 
Evaluation Report & Counseling Record (Period 96Mar05 to 96DEC11)
Letter of Deficiency pertaining to Applicant's Admin Board dtd 8 Jul 96 (6 pages)
Evaluation Report & Counseling Record (Period 96DEC12 to 97MAR15) no marks
PCS order dtd 1 Dec 96 (4 pages)

PART II - SUMMARY OF SERVICE

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

	Active:   USN			920515 - 951026	HON
					880107 - 920514	HON
					840110 - 880106	HON
	Inactive: USNR (DEP)	830418 - 840109	COG

Period of Service Under Review:

Date of Enlistment:  951027*	Date of Discharge:  970425

Length of Service (years, months, days):

	Active:    01  05  29
	Inactive:  None

Age at Entry:  32			Years Contracted:  4 

Education Level:  12			AFQT:  20

Highest Rate:  SM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.5 (2)	Behavior:  3.0 (2)		OTA:  3.86 (5.0 evals)

Military Decorations:  NAM

Unit/Campaign/Service Awards:  KLM(GOA), NAVY "E" RIBBON (2), SSDR (5), SWASM (3), AFEM, GCM (3)

Days of Unauthorized Absence:  None

* 95OCT27 reenlistment contract not contained in service record.

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:

960326:	NAVDRUGLAB, GLakes, IL, based on urinalysis sample received on 19 Mar 96, tested positive for marijuana.

960403:	NJP for violation of UCMJ, Article 112a:  wrongful use of controlled substance.
	Award:  Restriction and extra duty for 14 days, reduction to E-5.  No indication of appeal in the record.

960408:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all drug incidents in current enlistment.

960408:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

960702:	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 discharge under other than honorable conditions.

961025:	Telefax Communication from Pers-83 directed retention of applicant in naval service.

970109:	Fax communication from SJA requesting verification concerning applicant.  "He is a new check-in at Whiting and H_ (Applicant) gave me this copy of your fax."

970205:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding officer’s comments (verbatim):  "Concur with the recommendation of the board.  This case is resubmitted as requested by reference (b) (phoncon with Pers-832).  Questions arose after the package was inadvertently submitted without a transmittal letter.  From that point on the case was allegedly handed via E-Mail.  Eventually, enclosure (3) (TELEFAX Communication Pers-83 of 25 Oct 96) was received.  Upon inquiry to Pers-83 by SJA, Pers-83 indicated this case was never received nor processed.  NCIS is currently investigating authenticity of enclosure (3)….."

970225:	CNATRA recommended to BUPERS that applicant be discharged with a characterization of service as Other Than Honorable pending final outcome of NCIS investigation into fraudulent actions related to the administrative processing in the case.

970325:	BUPERS held proposed discharge action in abeyance pending receipt of the Senior Member authenticating signature.  

970407:	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 970425 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).

The applicant’s issue 1 describes his service and the circumstances surrounding his discharge.  The issues concerning the fraudulent fax from Pers 83 do not form the basis of the discharge.  The Board found that the applicant was properly and equitably discharged for drug abuse after being found guilty at NJP for violation of UCMJ Article 112a.  Relief is not warranted.

The following is provided for the benefit of the applicant.  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 clemency, based on post-service conduct.  The applicant did not provide any of these documents.  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. 

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 11 Dec 97, Article 3630620  SEPARATION OF ENLISTED PERSONNEL 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