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

 ex-IC3, USN
Docket No. ND02-00791

Applicant’s Request

The application for discharge review, received 020513, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the traveling panel in Portland, Maine.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, D.C. Area.  The NDRB also advised that the Board first conducts a documentary review prior to any personal hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030214.  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, as submitted

1.  I believe my discharge should be upgraded based on my service.  I continue to strongly deny the charges that led to my out-processing.  It remains the only disciplinary issue of my record.  My outgoing evaluation was still high enough to suggest promotion, not separation. In short, I gave seven solid years of dedication to duty and honorable service and stand proud of my performance, while shamed by its unjust conclusion.  Please review my record and the supporting documentation freely submitted by my department head, division officer and LCPO.  My record should speak for itself.

Documentation

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

Letter of Recommendation from LCdr T_ P. S_ USN, dated 24Sept1997
Copy of Character Witness Statement from D_ D. A_ JOC (SW/AW), USN
dated 1June1997
       Copy of Character Witness Statement from W_ A. M_ LT, USN undated
       Copy of DD Form 214
       Evaluation Report & Counseling Record (96MAR16-97MAR15)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900508- 900903	COG
	
Period of Service Under Review:

Date of Enlistment:  900904  	Date of Discharge:  971023

Length of Service (years, months, days):

	Active:    07 01 20
	Inactive:  None

Age at Entry:  20		Years Contracted:  4 (24 and 16 months extensions)

Education Level:  12			AFQT:  87

Highest Rate:  IC2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.8 (6)	Behavior:  3.8 (6)		OTA:  3.8 (4.0 eval)
                     	 5.00(1)                              5.00(1)                              4.57 (5.0 eval)

Military Decorations:  NDSM, GCA, NAM, OSR(3), SSDR(2), SASM

Unit/Campaign/Service Awards:  MUC

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 3630620.

Chronological Listing of Significant Service Events:

940904:	Executed 24 months extension agreement.

960904:	Executed 16 months extension agreement.

970510:	Incident/Complaint Report from Master at Arms, USS Independence:
Use, Possessing, Distribution and Introduction of Controlled Substance (Marijuana) and/or an Illegal Drug/Introduction of Alcohol on Board a Naval Vessel/USS Independence, Training Berthing, 3-26-3L.  Referred to Investigation.

970510:	NAVDRUGLAB San Diego CA.  Urine sample received 02May97- Positive for Marijuana.

970607:	NJP for violation of UCMJ, Article 92: violation of a lawful general regulation; Article 112a, wrongful use of a controlled substance.
	Award:  Forfeiture of $757.00 per month for 2 month(s), restriction and extra duty for 45 days, reduction to IC3.  No indication of appeal in the record.

970715:	NCIS Investigation Report filed in record.

970721:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by 1 NJP for violation of a lawful general regulation and 1 NJP for wrongful use of a controlled substance.

970722:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

970826:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.  

970826:	DAAR: Command urinalysis sweep, positive- Marijuana, not dependent, 	
		determined by physician.

970915:	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.

970915:	Letter of Deficiency submitted by Applicant’s counsel.

970916:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  
               	Commanding Officer’s comments (verbatim):  “After carefully reviewing the recommendations of the Administrative Discharge Board in the case of IC3 L_, I concur with the findings of the Board.  After testing positive for marijuana on a random urinalysis, IC3 L_ was afforded the right to request and take a polygraph test.  IC3 L_ failed the polygraph test.  IC3 L_ enlisted in the naval service with a drug waiver, claiming he used marijuana once in high school 10 years ago.  Along with the drug conviction at mast, IC3 L_ was also found guilty of introducing alcoholic beverages on board INDEPENDENCE.  The evidence in this case is overwhelming.  Therefore, I concur with the recommendation of the administrative board and recommend that IC3
L_ be discharged from the naval service with an Other Than Honorable discharge.”

970922:	Commander, Carrier Group Five, 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 971023 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.  There is credible evidence in the record that the Applicant used illegal drugs.  Despite the positive aspects of the Applicant’s service, drug abuse warranted processing for separation, normally under other than honorable conditions.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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.  Relief not warranted.

The Applicant 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.  Representation at a personal appearance hearing is 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 "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