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

 ex-BM2, USN
Docket No. ND02-00593

Applicant’s Request

The application for discharge review, received 020328, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the Applicant, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030107.  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, as submitted

1.  That the decision to discharge a seaman with 10 years of exemplemary service and specialized training with no other marks against him would seem to be a serious miscarriage of justice.  The fact that this seaman was on leave and had been at a party the night before would seem to be pertinent.  Also the fact that he had intended to get out at the particular time and was in attending this particular party to celebrate that fact, does not excuse his action but does clarify what happened, to some degree.  It would seem to be that the punishment far outweighs the offense, in this particular case.

Documentation

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

Twelve pages from Applicant's service record
Applicant's DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	910321 - 910619	COG
	Active:   USN			910620 - 970909	HON

Period of Service Under Review:

Date of Enlistment:  970910		Date of Discharge:  011009

Length of Service (years, months, days):

	Active:    04  01  00
	Inactive:  None

Age at Entry:  24			Years Contracted:  4

Education Level:  12			AFQT:  78

Highest Rate:  BM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (5)	Behavior:  3.40 (5)		OTA:  3.70

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM, SSDR (4), GCM (2), NER, NUC (2), AFEM, NAM (2), NATO, HSM, OSR (3), ESWS, EAWS

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:

010919:	NAVDRUGLAB, San Diego, CA reported Applicant's urine sample, received 010907, tested positive for methamphetamine.

010926:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance.
	Award: Extra duty for 30 days, reduction to BM2.  No indication of appeal in the record.

010926:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010926:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

011001:	Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments (verbatim):  [I have reviewed BM1 S_’s (Applicant’s) enlisted service record and the Naval Drug Lab Urinalysis Report.  This has been one of the most difficult and disappointing disciplinary proceedings that I have encountered in my naval career.  BM1 S_ (Applicant) is a 10 year Navy vet that has performed admirably during his career.  Initially a fleet BM he volunteered for EOD following his first sea tour.  A myriad of campaign ribbons, (2) GCM’s, NAM, ESWS, senior EOD tech and nominations for SOQ make up his repertoire.  A good EOD tech that is popular at this command, he was always the first to volunteer for operational assignments.  Having stated all the above he is well aware of the CNO’s drug abuse policy of zero tolerance which I fully support.  During CO’s Mast BM1 (Applicant) was forthright during questioning and admitted he had experimented with drugs on this occasion.  I have no evidence to indicate otherwise.  In lieu of the above I strongly recommend a general discharge, under honorable conditions vice OTH for violation of Article 112A, misconduct due to drug abuse.] 

011004:	COMPHIBGRUONE 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 011009 with a discharge characterization of 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).

Issue 1:  The receipt of commendatory awards and favorable performance evaluations during an Applicant’s enlistment do not guarantee an honorable discharge.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  The record clearly reflects the Applicant’s disregard for the Navy’s zero tolerance policy on drug use.  The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The following is provided for the Applicant’s information:  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, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the Applicant is living a drug free life style, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.  

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.  

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 Jul 2001 until 21 Aug 2002, 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