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

 ex-GMSN, USN 
Docket No. ND03-00618

Applicant’s Request

The application for discharge review was received on 20030225.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests 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 20040128.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 stated

Applicant’s issues, as stated on the application:

“1.  My discharge was improper because I was kicked out without any evidence against me, hearsay, and I was refused a court martial.  Supposedly I came up positive on a drug test.  I had witnesses with me to back my side of the story.  I had had fellow shipmates also testify that the drug test were being done improperly, which at that had I been given a court martial then everything would have been thrown out.  Also when I went to captain’s mast and the captain asked me if I wanted legal representation and I said yes the captain responded what do you think your going to do with that, I have a 100% record of kicking people out and I’m going to keep it I also had a good record.  I also volunteered and became a search and rescue swimmer.  I only had 4 mo. Left on my 4 yr contract, and I was just frocked to E-5, but I lost it all over a piece of paper which could have meant I took the wrong medicine or workout supplement.  I just want to get back into the military, but with a re-enlist code of RE-4 it is impossible.

Documentation

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

Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	970627 - 980622	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  980623		Date of Discharge:  020319

Length of Service (years, months, days):

	Active:    03  08  27
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (4 months extension)

Education Level:  12			AFQT:  54

Highest Rate:  GM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (5)	Behavior:  2.20 (5)		OTA:  3.01

Military Decorations:  None

Unit/Campaign/Service Awards:  EPSM, ERM, GCM, SSDR (2), NMCOSR (3)

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:

000216:	Record of Counseling [Discipline].

010326:	Record of Counseling [Other: On March 24, 2001, you were seen wearing drug paraphernalia, namely a pot leaf shaped pendant, by GMC(SW) M___.  This is in violation of the current U.S. Navy Regulation].

010830:	Record of Counseling [Other: On the morning of 30 August, 2001 Petty Officer N____ confronted you about leaving trash in the isles, and ordered you to pick it up.  By refusing to do so, you disobeyed a lawful order from a Senior Petty Officer.  Further more you responded in an argumentative and disrespectful manner during the discussion about the trash.  Petty Officer N___ noticed that you were wearing a tongue barbell.  This is one of various times that you have been cautioned about wearing a tongue barbell.  This is in direct violation of Navy Uniform Regulation article 7101.4 and 7101.5].

011231:	NAVDRUGLAB [San Diego, CA], reported Applicant’s urine sample, received 011217, tested positive for [Amphetamine/methamphetamine].

020104:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
Award:  Forfeiture of $784.00 for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

020104:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse, illegal or wrongful use, possession of controlled substance.

020104:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

020208:	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.

020227:	Commander, Carrier Group FIVE authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020228:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, illegal or wrongful use, possession of controlled substance. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020319 under other than honorable conditions for misconduct due to drug abuse (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:  The Applicant’s issue is without merit.  There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) for illegal drug use.  The Applicant’s summary of service clearly 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, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   

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