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

  ex-MMFN, USN
Docket No. ND04-00526

Applicant’s Request

The application for discharge review was received on 20040212.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region.  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 personal appearance discharge review was conducted in Washington, D.C. on 20050310.  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 3-2 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

Issue submitted by Applicant’s counsel/representative (AMERICAN LEGION):

1.  “(Equity Issue)  This former member requests that the Board consider provisions of SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), as it pertains to post-service conduct, in assessing the merits of this application.

In accordance with Title 32, CFR, Section 724.166 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue in supplement to the Applicant’s petition.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174D.”

The American Legion indicated that the above issue supercedes the issue filed by the Applicant on his DD Form 293.
Documentation

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

Applicant’s DD Form 214
College Transcript dtd 031118 (2 pages)
Copy of Commonwealth of Massachusetts Emergency Management Police badge
Copy of Applicant’s Class A Large Capacity License to Carry Firearms, front and back
Copy of Applicant’s Massachusetts driver’s license
Copy of Applicant’s CPR/AED American Red Cross card
Copy of Applicant’s police identification card
Employer’s ltr of reference dtd 050307
Billerica Emergency Management ltr to Applicant dtd 050107
Ltr of reference from Chief L_ S_, Billerica Emergency Management Police dtd 040302
Ltr of reference from G_ M_ dtd 050306
Ltr of reference from A_ C_ dtd 050308
Associate Degree certificate from Middlesex Community College dtd 040109
UMASS course registration documentation dtd 050112 (3 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	950713 - 951024	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  951025		Date of Discharge:  990312

Length of Service (years, months, days):

	Active:    03  04  16
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  39

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)	Behavior:  2.00 (2)		OTA:  2.95

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM, SSDR

Days of Unauthorized Absence:  2

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:

970626:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 970616 to 970618.
	Award: Forfeiture of $250 per month for 1 month, restriction for 30 days.  Restriction suspended for 6 months.  No indication of appeal in the record.

970626:	Retention Warning: Advised of deficiency (Violation Article 86: Unauthorized absence from 16 to 18 June 1997), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990212:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 990209, tested positive for THC.

990217:	NJP for violation of UCMJ, Article 112a: Wrongfully use marijuana on 990208.
	Award: Forfeiture of $612 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

990218:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse with the least favorable characterization as under other than honorable conditions.

990218:	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.

990227:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse.

990309:	COMPHIBGRU THREE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000831:	NDRB documentary record review Docket Number ND00-00390 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990312 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 was subject to nonjudicial punishment proceedings for violating Articles 86 and 112a of the UCMJ.  Mandatory processing for separation is required for sailors who abuse illegal drugs.  Separation under these conditions generally results in a characterization of service as 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.

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, can be considered.  In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the Applicant's record of community service, employment, conduct, educational achievements, and family relationships.  In reviewing the Applicant’s post service, the Board was impressed with the Applicant’s accomplishments.  The Applicant’s community service efforts serving as a volunteer police officer are noteworthy.  In addition, the Applicant’s steadfast dedication to his education and solid civilian work history are commendable.  However, after a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Relief denied.

The following if provided for the edification of the Applicant.  The NDRB has no authority to provided additional review of this case.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023