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

 ex-HTFN, USN
Docket No. ND02-01202

Applicant’s Request

The application for discharge review, received 020819, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance discharge review before a traveling panel closest to Detroit MI or Buffalo, N.Y.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  Subsequent to the application, the Applicant converted the request to a documentary discharge review due to traveling all over the country with his current job.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030612.  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/Separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I am submitting my request for review of my discharge from the U.S Navy back in 1988.  I proudly served in the Navy for 10 years and would have completed my enlistment and retired from there had I not had a conflict with a Warrant officer in charge of the Naval station Brig in Charleston S.C.

I was stationed at the Naval station Brig in Charleston S.C for 3 years from 1985 to 1988.  I don't really know what happened or what went wrong.  I made E-6 before arriving at the Brig and was working on making E-7 before I left or shortly thereafter.  We got a new brig officer and for reasons which I can't explain we just didn't get along.  I had always done my job well and followed the rules as they were laid out.  My entire time in the Naval service I held 3.8-4.0 evaluations but once the new brig officer came in my evaluations dropped significantly for no apparent reason.  Before the new brig officer came in I had been promoted to Duty Warden shortly after the new C.0 came in I was demoted for poor conduct.

My tour was coming to an end and I was ready to go back to sea and get my career back on track.  Then it seems that the other shoe fell and I came up positive on a urinalysis for THC.  The Brig C.O. decided he would make an example of me and send me through a court martial.  Understand while working at the brig we as guards averaged 2 urinalysis a month or at least I did) After coming up positive they had me take another Urinalysis test which came back negative.  I also took a polygraph test with N.I.S. which came back clearing me of any wrongdoing but afterwards I was told it was inadmissible.  I had written my state senators and congressmen who at the time had inquired about my situation making a lot of unwanted waves.  Base legal came to me with the following proposals 

1)  Go through with the Court martial proceedings and lose.  Giving me not only brig time but a criminal record along with a BCD forfeiture of all pay and allowances and reduction to E- 1
2)  The second option was take a reduction to E-3 and an OTH discharge no court martial and just get on with my life.

Given those options I took the lesser of two evils and have regretted it ever since.  I have taken my military background and I have used it to build a very good life for myself but not a day goes by that I don't regret the way my career ended.

I want to put a positive ending to my naval experience.

I have no idea how my urinalysis came up positive I have never messed with drugs Why did the second test come back negative and the polygraph results come back exonerating me of the charges yet they chose not to use those findings.  In my gut I feel that had I been on good terms with the brig C.O. the second test coming back negative would have cleared me.

Please look at the facts and overturn this injustice.  I was a good sailor I feel I deserve to be treated better than this.  I would be willing if necessary, meet with the board that is to rule on this matter.

I am proud to be an American citizen, and proud to have served my country.  Please overturn this decision and let me hold my head high again.

The term Other Than Honorable to me means my honor was taken away from me.  I don't feel I deserved this after dedicating 10 years of my life to protecting the country that I love.

Sincerely,

Documentation

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

Applicant's DD Form 214 (Member 1)
Letter from Applicant, dated February 6, 2003
Letter of recommendation, dated February 4, 2003
Job/character reference, dated February 4, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   USN			781013 - 821017	HON

Period of Service Under Review:

Date of Enlistment:  821018		Date of Discharge:  881130

Length of Service (years, months, days):

	Active:    06  01  23
	Inactive:  None

Age at Entry:  22			Years Contracted:  6

Education Level:  11			AFQT:  58

Highest Rate:  HT1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.73 (6)	Behavior:  3.69 (6)		OTA:  3.73

Military Decorations:  None

Unit/Campaign/Service Awards:  ESWS, NEM, SSDR, GCM, HSM (2)

Days of Unauthorized Absence:  5

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/separation in lieu of trial by court martial, authority:  NAVMILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events:

880824:	Unit sweep urinalysis.  Urine sample came back positive THC.

880909:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 112A: Wrongfully use marijuana on 880824.

881019:	Medical Examination:  Applicant evaluated by medical officer and found to be of normal mental status – no documented mental health/psychiatric illness in the past. Psychiatric evaluation not required.  Applicant understands the charges preferred against him and is capable in assisting in the preparation of his defense.  Applicant is fit for duty and should be held responsible for his actions.

881025:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him.  Specifically, he admitted to violating UCMJ, Article 112A: Wrongfully use marijuana.  The Applicant stated he was completely satisfied with the counsel he had received. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  

881028:	The Commanding Officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 881130 under other than honorable conditions in lieu of a trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

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.  The Applicant states his character is demonstrated by his outstanding and documented evaluations and quick promotion to Petty Officer first class.  The Board agrees the Applicant had very good evaluations throughout his tenure in the Navy, but his performance prior to the misconduct does not mitigate his use of illegal drugs demonstrating he was unsuitable for further service.  The record is void of any evidence that the Applicant was not responsible for his conduct, he was treated unfairly or that he should not be held accountable for his actions.  His service record is marred by illegal drug use thus substantiating the misconduct for which he was separated.  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.  However, the NDRB did note an administrative error on the original DD Form 214 and corrected it to reflect the Applicant’s previous four years of honorable service.  For the Applicant’s edification, Sailors guilty of illegal drug use normally receive a discharge characterization of under other than honorable conditions.   

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.  Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until 24 May 89, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURT‑MARTIAL. 

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article [112A, wrongful use of a controlled substance] upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial].

C.  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.  

D.  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.

E.  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