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

 ex-DKSN, USN
Docket No. ND02-01246

Applicant’s Request

The application for discharge review, received 020906, 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 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/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I feel that I was, and can still be, an asset to the Navy.  I don't think that I was given the chance to prove my Innocence.

My request for a Special Court Martial was denied.  See attached documents.

2.  To whom it may concern,

My name is O-- S. A---.  I am requesting an upgrade of my discharge from the Navy.  I do realize that my discharge was based on a drug related case, but I was never given the chance to prove my innocence.  Attached is paperwork showing that I was in fact an asset to the Navy.  I do admit that I made a bad choice by being around people while they were smoking marijuana, but like I've said from the beginning, I do not do drugs.  I wanted to go to Court Martial to defend myself, but was never given the opportunity.  Before my situation happened, I never knew that a request for Court Martial could be denied.  I feel that my right to a fair trial was taken from me.  All I am asking is to get my discharge upgraded so that I may be a respected part of my community, and maybe join the Naval reserves.  I do appreciate your consideration.

Respectfully,

Documentation

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

Handwritten letter to Congress of the United States, House of Representatives, from Applicant, dated May 17, 2002
Applicant's DD Form 214
Nineteen pages from Applicant's service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	981221 - 990105	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990106		Date of Discharge:  010615

Length of Service (years, months, days):

	Active:    02  05  10
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  10 GED		AFQT:  64

Highest Rate:  DK3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)	Behavior:  2.00 (2)		OTA:  2.92

Military Decorations:  None

Unit/Campaign/Service Awards:  NATO, KCM, NUC, NEM

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:

001214:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 001130, tested positive for THC.

010313:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010501:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to submit statements.  Applicant originally elected an administrative discharge board on 010315.

010509:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

010529:	Commander, Navy Region, Mid-Atlantic 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 010615 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).

Issues 1 and 2.  There is credible evidence in the record that the Applicant used illegal drugs.  Despite the favorable references from members of his chain of command, drug abuse warranted processing for separation, normally under other than honorable conditions.  The decision whether to refer a case to a court-martial or to impose non-judicial punishment is within the discretion of an individual’s commanding officer.  Administrative separation regulations allow for the separation of an individual for an offense that constitutes a violation of the UCMJ without a finding of guilty at either a court-martial or non-judicial hearing.  Accordingly, the fact that applicant’s commanding officer did not take disciplinary action prior to initiating administrative separation proceedings does not constitute an inequity or impropriety.  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.  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