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

 ex-OS2, USN
Docket No. ND02-01015

Applicant’s Request

The application for discharge review, received 020710, requested that the characterization of service on the discharge be changed to honorable.  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 030414.  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. On Feb 12, 1999 I was released from active duty in the U.S. Navy for positive results on a urinalysis test.  I tested positive for marijuana.  My discharge status is Other than Honorable.  My father had passed away in late December, 1998 while I was stationed in San Diego on board U.S.S. Bunker Hill.  During this difficult time I made the mistake of smoking pot with a family member to help relieve the stress.  I do not mean to use my father's death as a justification for what I did.  It was however, a one time incident and I knew full well the consequences of my action.

I kindly request the Navy Board of Review to review my military record of twelve years in the Navy.  My conduct, efficiency, behavior & proficiency marks were always above average.  I was Command Advanced to First Class Petty Officer while on board U.S.S. Blue Ridge, Flagship for 7th Fleet. I was surface warfare qualified as a 3rd Class P.O. I received 3 Navy Good Conduct Medals and the Navy Achievement Medal.  In my records are many commendations for work well done.  I had combat service during the Persian Gulf War on board U.S.S. Dubuque & U.S.S. Blue Ridge.

Since my discharge I have been gainfully employed and have established myself within the community and church.  My discharge however, haunts me.  Although I have no one to blame but myself for my actions, this was a one time incident against 12 years of excellent service to my country.

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION."  None were found.

Documentation

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

Applicant's DD Form 214
Letter from Guardsmark Inc., dated June 11, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	860716 - 860817	COG
	Active:   USN			860818 - 900816	HON
		   USN			900817 - 960814	HON

Period of Service Under Review:

Date of Enlistment:  960815		Date of Discharge:  990311

Length of Service (years, months, days):

	Active:    02  06  27
	Inactive:  None

Age at Entry:  44			Years Contracted:  4

Education Level:  12			AFQT:  85

Highest Rate:  OS1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, GCM (3), KLM (2), AFEM, NUC, SSDR (7), NAM, SASM

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:

990212:	NJP for violation of UCMJ, Article 112A (2 specs): Wrongful use, possession, etc., of controlled substance, to wit: marijuana.
	Award:  Forfeiture of $905 per month for 2 months, restriction for 45 days, reduction to OS2.  Forfeiture suspended for 2 months.  No indication of appeal in the record.

990219	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
	[Extracted from Commanding Officer’s letter to Commander Cruiser Destroyer Group THREE.]

990225:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments (verbatim):  [OS2 I_ (Applicant) misconduct due to drub abuse is unacceptable.  Prior to this incident, his performance as a First Class Petty Officer had been average.  His willful disregard of the Navy’s zero tolerance policy, admitted use of marijuana in two cases and his position as a First Class Petty Officer are factors that increase the severity of his misconduct.  OS2 I_ (Applicant) does not possess potential for further Naval Service, and he is recommended to be discharge with an other than honorable characterization of service.]

990305:	Commander Cruiser Destroyer Group THREE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

Partial discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT
 REGULATION/LAW

Discussion

The Applicant was discharged on 990311 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:  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.  While he may feel his father’s death was a contributing factor, it does not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by award of non-judicial punishment (NJP) thus substantiating the misconduct.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  An upgrade to honorable conditions would be inappropriate.  Relief denied. 

Issue 2:  The Applicant states his discharge was based on one isolated incident in twelve years of excellent service. The Board agrees the Applicant had good evaluations throughout his tenure in the Navy, but his performance prior to the misconduct does not mitigate this offense.  The Applicant used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  The discharge was proper and equitable.  Relief denied.  The NDRB did note an administrative error on the original DD Form 214 and corrected it to reflect the Applicant’s previous ten years of honorable service.  

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.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.

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 18, effective 12 Dec 97 to 19 May 99, 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