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

 ex-HT3, USN
Docket No. ND01-01083

Applicant’s Request

The application for discharge review, received 010813, requested that the characterization of service on the discharge be changed to 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 020328.  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 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issue (verbatim) 

1.  My separation is based on a one time use of marijuana.  I fully understand that the navy has a zero tolerance policy towards the use of drugs.  I made a mistake that has cost me a career that I loved dearly.  In the ten years of service, I served my country with pride and dedication.  I don't understand why those ten years of service should be sullied by one incident.  My evaluations, awards and commendations for the past ten years are proof to my honorable service.  I sincerely request the board show compassion and take into account all that I have done in service of this great nation.  Thank you for your time and consideration.

Documentation

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

BCNR ltr to Applicant dtd Mar 6, 2001 w/DD 149
Meritorious Unit commendation (1 Aug 97 to 28 Feb 99)
Letter of Appreciation dtd 23 Nov 98
Certificate of Course Completion, PREVENT 2000, Personal Responsibility and Values Education and Training dtd June 19, 1997
Navy and marine Corps Achievement Medal (2 pages) dtd 5 May 97
Letter of Commendation, COMSUBGRU EIGHT, DTD 5 May 97 (2 pages)
Letter of Commendation Certificate  (Oct 92 - Mar 93)
Enlisted Performance Evaluations (11)
Initial Enlistment Contract (DD FORM 4) with associated forms dtd 91Mar05 (5 pages)
Enlisted Performance Record page (NAVPERS 1070/609)
History of Assignments page (NAVPERS 1070/605) (2 pages)

PART II - SUMMARY OF SERVICE

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

	Active:   USN			910423 - 961003	HON
	Inactive: USNR (DEP)	910305 - 940422	COG

Period of Service Under Review:

Date of Enlistment:  961004		Date of Discharge:  010212

Length of Service (years, months, days):

	Active:    04  04  09
	Inactive:  None

Age at Entry:  26			Years Contracted:  6

Education Level:  12			AFQT:  85

Highest Rate:  HT2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  5.0 (3)	Behavior:  4.33 (3)		OTA:  4.43

Military Decorations:  NAM

Unit/Campaign/Service Awards:  MUC (2), Battle "E" Ribbon, GCM, NDSM, SWASM, AFSM, SSDR(3)

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 1910-146, formerly 3630620.  [Administratively corrected.]

Chronological Listing of Significant Service Events:

910305:	Acknowledged understanding of the Navy's Drug and Alcohol Abuse policy.

961004:	Reenlisted for 6 years on board USS SIMON LAKE at LaMaddalena IT.

010126:	NJP for violation of UCMJ, Article 112:  wrongful use, possession, etc., of controlled substance.
Award:  Reduction to E-4.  No indication of appeal in the record.

010129:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by violation UCMJ Article 112a, positive urinalysis dtd 19Jan01.

010129:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

010130:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding officer’s comments (verbatim):  "Recommend administrative separation from Naval Service with a characterization of service of Other Than Honorable Condition by reason of Misconduct due to Drug Abuse.  HT2 (Applicant) has been in the Navy for over 9 years and has no potential for future service.

010201:	COMSUBGRU TEN 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 010212 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 states that the applicant used illegal drugs once, he fully understood the navy’s zero tolerance policy towards the use of drugs.  He further states he made a mistake that has cost him a career he loved dearly but he served his country with pride and dedication.  Use of illegal drugs required then and now, mandatory processing for separation, normally under other than honorable conditions.  The applicant failed to provide any evidence to show that there was an error in the discharge procedures or that the characterization assigned to his discharge was inequitable.  Additionally, the applicant failed to provide sufficient documentation to show that his post-service accomplishments warrant an upgrade to his discharge.  The discharge was proper and equitable.  Relief based on this issue is denied.

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.  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