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

 
ex-GMSA, USN
Docket No. ND03-01303

Applicant’s Request

The application for discharge review was received on 20030801.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040526.  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 reason for attempting to get a review of my discharge from the united states navy and hopefully an upgrade of my discharge is based on a couple of things.  I was discharged under other than honorable conditions from the USS Arleigh Burke (DDG-51) on 02 April 2002 for misconduct.  The charge was failing a urinalysis for THC (marijuana) in February 2002.  The outcome of my NJP with Commander R_ R_ was a lowering rank from frocked third class petty officer to a seaman apprentice, forty-five days restriction, forty-five day extra duty, and 2 months at half months pay.  Following that I received an other than honorable discharge.  I enlisted in the United Stats Navy from Longview, Texas on 29 December 1999.  From the time of enlistment until the time I failed the urinalysis (26 months) I had received no disciplinary actions.  I had attended Gunner’s Mate “A” School and MK 41 VLS “C” School and served one Persian Gulf tour aboard the USS Arleigh Burke (DDG-51) with no instance of bad conduct or reprimands.  I was the hardest worker in the workcenter and spent countless hours doing workcenter work, PQS training, and I was a member of the special security force.  All of this can be checked on by my work center chief GMC (SW) R_ D_ and work center supervisor GM2 K_ M_ still serving aboard the USS Arleigh Burke (DDG-51).  Since being discharged from the United States Navy, I have held a job and not been in any trouble.  I am attempting to enroll in classes at West Georgia College in Georgia to further my education in the Fall of 2003.  What I am trying to convey to the Board is that I had not been in any trouble during my military career up to my discharge and I have not been in any since some 15 months later. As a result of my good conduct I would like to have a review of my discharge to check my eligibility of upgrading it from an other than honorable discharge to general discharge so that I will not be hindered in finding a good job after I finish college.  I want to thank the Board for taking the time to review my application and feel free to contact me if any additional information is needed or requested.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	991220 - 991228	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  991229		Date of Discharge:  020402

Length of Service (years, months, days):

	Active:    02  03  03
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  88

Highest Rate:  GMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.50 (2)	Behavior:  2.50 (2)		OTA:  2.35*

Military Decorations:  None

Unit/Campaign/Service Awards:  NAM, AFEM, SSDR, BATTLE”E”

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:

020201:	NAVDRUGLAB [Jacksonville, FL], reported Applicant’s urine sample, received 020125, tested positive for [THC].

020208:	NJP for violation of UCMJ, Article 112A:  Did on or about 020107, submit to a command authorized urinalysis on board USS ARLEIGH BURKE, and did test positive for tetrahydrocanabinol (THC), a known controlled substance.
	Award:  Forfeiture of $619.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

020213:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct commission of a serious offense as evidenced by all incidents in your current enlistment and misconduct due to drug abuse as evidenced by all drug incidents in your current enlistment.

020213:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

020220:	Commander, Destroyer Squadron TWO concurred with the recommendation of Commander, Cruiser Destroyer Group EIGHT for administrative separation 

020313:	Commander, Cruiser-Destroyer Group EIGHT authorized 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 20020402 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).

Issues 1:  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable.  The Applicant states his discharge was based on one isolated incident in “26 months.”  Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  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.  At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty.  

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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