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

 ex-HN, USN
Docket No. ND04-00143

Applicant’s Request

The application for discharge review was received on 20031105.  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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040715.  After a thorough review of the available 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 DOCUMENTATIONIssues, as statedApplicant’s issues, as stated on the application:1.  “To whom it my concern,

The following issues were the reasons I believe my discharge should be upgraded to an honorable discharge.

My average conduct and efficiency ratings were above average.  My evaluation marks on the evaluation reports were all above average with an early promote except for the last one issued.  I was nominated for sailor of the quarter two separate times in 2000.  I was always on time, demonstrated professionalism, knowledgeable of my job, and was a team player.  I also was awarded the good conduct medal in the time of my enlistment.

My discharge was too harsh due to the fact that I still plead my innocence for the reason that I consciously did not use any such drug.  I did not pursue legal action due to the lack of evidence I had to plead my case.  My thoughts were that if legal action was pursued, I had a lot to win but a tremendous amount to lose.  It was too risky and a big gamble due to the evidence against myself.  I only have my character and my own conscious which allow me to say that I did not use any illegal drugs.  It would be absurd of me to still sit here and say I did not use drugs.  At this point in time, I have nothing to lose or prove if I were to deny any such participation that I was charged with.  I believe that I am competent enough to choose what is right and what is wrong.  And also to weigh out my consequences and what I was going to lose.  I did not only lose my honor and dignity but also the pride I had of being a sailor and my belief and trust in my fellow Marines and Sailors which participated in punishing me for such a crime of the UCMJ which I am innocent of.  The same people which punished me and did not believe in my commitment to the Navy and my fellow marines still had trust in me to carry on with my duties as a sailor in treating patients and handling medications and defending our nation but could not find it in their hearts to believe that I would harm my own body in that way! I will never understand such thinking from great men.

Since I have been discharged, my attitude and behavior have been far beyond other citizens around the area.  I have been attending college classes at night and working during the day.  My job is assisting a Thoracic/Vascular surgeon in surgery.  The surgeries we perform are lung lobectomy (thoracoscopy/thoracotomy), carotid endarterectomy, limb amputations, angioplasty with stent placement (lower extremity). bypass surgery, arterio-venous fistulas, catheter placements, and many other surgeries.  I do acknowledge that I have the U.S. Navy to thank for the skills I possess.  I am currently writing an article on a surgery called SEPS (Subfascial Endoscopic Perforator Surgery) and also on popliteal aneurysms (using Wallstent graft-stents for aneurismal repair).  Hopefully it will be published soon in the “Surgical Rounds” magazine.  My major is chemistry.  I plan to pursue the field of medicine.  My grade point average is a 3.4.  I am in the Phi Theta Kappa Honor Society and was recently nominated for The National Dean’s List 02-03.  I have also found spare time to volunteer myself in the Red Cross and the Frostproof Police Department.  During the holidays, I pass food for the needy in my area with a local church.  Although I have been discharged from the Navy, I still apply the skills I acquired in the military which have given me such success.

I would like to thank you for the opportunity of reviewing my case and hope it will be reconsidered.

Sincerely,

E_ L_ (Applicant)”

Documentation

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

Certificate from Phi Theta Kappa, dated October 6, 2002
The National Dean’s List certificate, dated 2002-2003
Article written by Applicant and P_ I_, MD
Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):
	
	Inactive: USNR (DEP)	960716 - 970617	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  970618		Date of Discharge:  010205

Length of Service (years, months, days):

	Active:    03  07  18
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  51

Highest Rate:  HM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.75 (4)	Behavior:  3.50 (4)		OTA:  3.58

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, FMFR, GCM

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:

000921:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 000914, tested positive for cocaine.

001024:	Medical officer evaluated Applicant and found he meets the criteria for no diagnosis.  Recommends Marine drug awareness course and administrative separation due to positive urinalysis.

001104:	NJP for violation of UCMJ, Article 112A: Wrongfully use a controlled substance on 000906, to wit: cocaine.
	Award: Forfeiture of $667 per month for 2 months, restriction and extra duty for 14 days, reduction to HN.  No indication of appeal in the record.

001117:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all incidences of drug abuse in your current enlistment.

001117:	Applicant advised of rights and having consulted 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.

010124:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

Parts of Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010205 under other than honorable conditions for misconduct due to drug abuse (A).  In the absence of a complete discharge package, the Board presumed regularity in the conduct of governmental affairs (B) and, after a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, found that the discharge was proper and equitable (C and D).

Issue 1.  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 evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant states his discharge was based on an isolated incident.  Despite a servicemember’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.  The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged.  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 consider his discharge proper and equitable.  Relief denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV).  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural error or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The applicant provided documentation of his educational pursuits as evidence of his post-service conduct.  The applicant's efforts need to be more encompassing than those provided.  For example, the applicant could have produced evidence of a verifiable employment history, documentation of community service, certification of non-involvement with civil authorities and evidence of drug free existence,  in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided sufficient documentation of post service character and conduct to mitigate the reason for his discharge.  Therefore, no relief will be granted.  He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 - 11 Feb 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