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

ex-MM3, USN 
Docket No. ND03-00728

Applicant’s Request

The application for discharge review was received on 20030324.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040303.  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:

“The following issues are reasons I believe my discharge should be upgraded to honorable. If you disagree, please explain in detail why you disagree. After reviewing theses points it will become evident an “Other than Honorable”, does not apply to my case because of the evidence I am submitting.

1)  My record of promotions showed I was a good service member.

2)  There were other acts of my merit.
(Ex. Responded on numerous occasions to engine room casualties. Saved propulsion plant from casualty while answering high bells while engaged with enemy target operations in Arabian Sea. Served as role model around the ship for young minorities, requested to re-enlist and did so etc…)

3)  My record indicates I had one isolated offense.

4)  I had no prior record of Non Judicial Punishment offenses.

5)  My ability to serve was impaired because of family problems.

6)  Personal problems impaired my ability to serve.

7)  I had applied for a compassionate reassignment but was unfairly denied.

8)  When I got back from overseas, I just couldn’t adjust to in port duty.

9)  There were other options my command could have pursued other than sending me home with a bad discharge.

I was discharged on the grounds of “Misconduct due to drug abuse”. Prior to this incident I had been in no trouble; I had just received my good conduct award. I was discharged solely on drug related conduct or possession. aswauth {A85.04}{A85.02} I had never before used or been accused of having taken or possessing drugs. I was also, not involved in any type of selling or drug trafficking. aswauth {94.38} The nature of my training instilled in me the utmost respect shared by all Nuclear Operators in the Navy for the clear and present dangers in the power plant. This fact kept me from crossing the line and doing anything remotely dangerous while on duty. For this reason I was not on duty the night of the misconduct. aswauth {94.32} The actual amount that was found at the home where the misconduct took place was a small amount found in a baggy. That baggy was not found on my person. It was on the kitchen floor, where I was not a tenant. The amount of marijuana that was used was a very small amount. aswauth {A94.30}.”

Additional issues submitted by Applicant’s representative (American Legion):

“10.  (Equity Issue) This former member finally requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.”

Documentation

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

Applicant’s DD Form 214 (2)
Letter from the Applicant, dated February 27, 2003 (5 pages)
Character reference, dated December 18, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	970827 - 980721	COG
	Active:   USN			980722 - 000906	HON

Period of Service Under Review:

Date of Enlistment:  000907		Date of Discharge:  020712

Length of Service (years, months, days):

	Active:    01  10  07
	Inactive:  None

Age at Entry:  20			Years Contracted:  6

Education Level:  12			AFQT:  84

Highest Rate:  MM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.67 (3)	Behavior:  1.67 (3)		OTA:  2.29

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, GCM, BEA, NDSM

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:

020306:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 020227, tested positive for THC.

020328:	NJP for violation of UCMJ, Article 112A: Wrongfully use marijuana on 020206.
	Award: Forfeiture of $839 per month for 2 months, restriction for 60 days, reduction to MM3.  No indication of appeal in the record.

020328:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020401:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

020523:	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.

020606:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020628:	CNPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020712 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 1-9:  The Applicant states his discharge was based on one isolated incident.  To maintain proper order and discipline the military does not view isolated offenses as minor infractions even though they are a first time incident on an otherwise above average record.  Even though he may feel that his personal problems were contributing factors, they do 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.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) for illegal drug use.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable.   Relief denied. 

Issue 10:  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.   At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty.  Relief denied.

The NDRB noted an administrative error on the original DD Form 214.  Block 18 did not reflect the Applicant’s previous two years of honorable service.  The Board notified Commander, Naval Personnel Command, Millington, TN and recommended the DD Form 214 be corrected or reissued.   

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