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

 ex-EM3, USN
Docket No. ND02-00609

Applicant’s Request

The application for discharge review, received 020404, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions or entry level separation or uncharacterized.  The Applicant requested a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

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

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  Dear Sir:

During my Navy career from October, 1995 to May, 2001, I received various awards and citations for my performance and respect from my peers and supervisors, because I strived to exceed the Navy's expectations.  In March, 2001, I was intimidated into confessing that I had done drugs off base on my leave time.  I was never physically caught with drugs and no witness ever saw me doing drugs.  Also I never failed a Navy drug screen; therefore, I am requesting a revised DD-214 that states these facts so that I may obtain employment.  I owe the government $13,000.00 for a re-enlistment bonus, and I will gladly repay this money when I can find employment.  With my current discharge, Other than Honorable with a separation code HKK, no employer will hire me.  I gave the Navy good service for 5 1/2 years so please revise my DD-214 to reflect the above listed facts.

Sincerely,

Signed by Applicant

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:   USN			951003 - 980405	HON
	Inactive: USNR (DEP)	950225 - 951002	COG

Period of Service Under Review:

Date of Enlistment:  980406		Date of Discharge:  010524

Length of Service (years, months, days):

	Active:    03  01  18
	Inactive:  None

Age at Entry:  21			Years Contracted:  6

Education Level:  12			AFQT:  84

Highest Rate:  EM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (4)	Behavior:  2.75 (4)		OTA:  2.93

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSBN Deterrent Patrol Pin (6 Patrols), GCM, NAVY"E"RIBBON

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.

Chronological Listing of Significant Service Events:

980406:	Reenlisted onboard USS MICHIGAN (SSBN 727) BLUE for 6 years.

010423:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a: (5 Specifications), wrongful use of a controlled substance
	Finding:  to Charge I and specifications 1 through 5 thereunder, guilty.
	Sentence:  Confinement for 30 days, forfeiture of $1050.00 pay per month for 1 month, reduced to E-4.
	CA action 010426:  Sentence approved and ordered executed.

010426:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010426:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

010509:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments (verbatim): [Petty Officer A_ (Applicant) has used illicit drugs numerous times directly violating the Navy’s policy of zero tolerance.  Accordingly, he has no potential for productive naval service.  By separate action he was disqualified from duty in submarines.  I strongly recommend that he be separated from the naval service and his service be characterized as Other Than Honorable.] 

010510:	Commander, Submarine Group 9 authorized 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 010524 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 receipt of commendatory awards and favorable performance evaluations during the 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 31, dated 20 Feb 01, effective 12 Feb 2001 until 15 Jul 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 "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