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

 ex-HM3, USN
Docket No. ND02-01170

Applicant’s Request

The application for discharge review, received 020814, 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030515.  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.  I was told by the board and also shown in the report was found there was no evidence of misconduct.  Also during the board my civilian hired attorney was unable to attend due to a medical emergency.  He and myself did not have much communication with my JAG attorney due to the fact that he was located in Florida and we were in Louisiana.  My civilian attorney contained all documentation and evidence.

Documentation

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

Five pages from Applicant's service record
Applicant's DD Form 214
Statement from Applicant, dated January 17. 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	971121 - 971120	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  971121		Date of Discharge:  011109

Length of Service (years, months, days):

	Active:    03  11  19
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  9			AFQT:  70

Highest Rate:  HM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.86 (7)	Behavior:  2.85 (7)		OTA:  3.67

Military Decorations:  None

Unit/Campaign/Service Awards:  OSR (2)

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:

990323:	NJP for violation of UCMJ, Article 128: Assault upon a petty officer.
	Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 30 days, reduction to HN.  Reduction suspended for 6 months.  No indication of appeal in the record.

001221:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 001211, tested positive for THC. [Extracted from Letter of Deficiency and supporting document from Applicant.]

010206:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010206:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

010724:	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 and recommended a suspended separation for 12 months.

010829:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments (verbatim): The Board's findings are in error.  By a unanimous vote, the board found no misconduct, yet recommended that HM3 (Applicant) receive a suspended separation with an Other Than Honorable Discharge.  To recommend a suspended separation after finding no misconduct is not in accordance with common sense.  Therefore, it is logical to conclude, that the board intended to find misconduct and recommend a suspended separation.  Regardless, I believe that the alleged misconduct occurred and as a result HM3 (Applicant) should be separated from the naval service.

011026:	CNPC 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 011109 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:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The record is void of any evidence the Applicant was not afforded all of his rights.  Furthermore, the Board disagrees with the Applicant’s claim that the administrative board did not find any evidence of misconduct.  In a letter to the Applicant’s Commanding Officer dated 24 July 2001, the administrative board unanimously found the Applicant had committed misconduct and recommended a suspended separation with a characterization of under other than honorable.  The Applicant’s service record is marred by illegal drug use and award of non-judicial punishment (NJP) for assault.  The Applicant’s summary of service clearly reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate.  Relief denied.

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