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

ex-BUCN, USN
Docket No. ND04-00773 

Applicant’s Request

The application for discharge review was received on 20040413.  The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requested a documentary record review.  The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050107.  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:

“Issue 1.  The other than honerable discharge was too harsh a punishment for me because prior  to my mistake I served honerably with excellent ratings from my chain of command.

Issue 2.  I was just promoted to E-5 two months prior and was still trying to transition to leadership.  I believe if I had another chance to prove myself I would have learned from my mistake and developed into a solid leader.

Issue 3.  My family has a tradition of service to our country and that should be considered in this decision.

Issue 4.  I continue to work hard in my community, I have not experimented with any drugs since this incident and I continually have remorse for my error.”

Documentation

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

Cover Letter from the Pine County Veterans Service Officer, D_ D_, VSO, 
dtd April 6, 2004.
Statement from the Pine County Veterans Service Officer, D_ D_, VSO, 
dtd March 10, 2004.
Character Reference from R_ L_, dtd March 10, 2004 (2 pages).
Character Reference from D_ B_, dtd March 17, 2004.
Black and white picture from Career Day.
Applicant’s DD Form 214 (Member-4).
Eval, date July 9, 2003 (Period of Report 02JUN16 – 03JUN04).
Eval, date July 9, 2003 (Period of Report 03JUN05 – 03JUL08).
CO’s Adverse Performance Evaluation Report, dtd July 8, 2003 (2 copies).
Applicant’s DD Form 214 (Member-1).
Promotion letter, Third Class Petty Officer, dtd 31 Jan 02.
Administrative Remarks, (Page 13).
Defense Client Intake Questionnaire, dtd May 29, 2003
Letter from Commander, Naval Air Warfare Center Weapons Division, dtd June 27, 2003.
Letter from Commanding Officer, U. S. Naval Mobile Construction Battalion FIVE, 
dtd June 11, 2003 (2 pages).
Applicant’s "Accused Notification and Election of Rights" (4 pages).
Certificate for Senior Sailor of the Quarter, dtd January-March 2002
Letter of Appreciation, undated.
Certificate of commendation, undated.
Completion Certificate, dtd January 30, 2002.
Certificate of commendation for January 2002 through March 2002.
Applicant’s DD Form 214 (Member-4).
Eval for 01JUN16 to 02JUN15, date August 12, 2002.
Eval for 03JUN05 to 05JUN11, undated.
Applicant’s Individual Achievement, 7/2/03 (2 pages).
Promotion letter, Third Class Petty Officer (duplicate), dtd January 31, 2002.
Completion Certificate, Basic Rescue (SCBT 979.1), dtd March 23, 2001.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990630 – 000619	COG
	Active:   			None			HON

Period of Service Under Review:

Date of Enlistment:  000620		Date of Discharge:  030708

Length of Service (years, months, days):

	Active:    03  00  19
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  45

Highest Rate:  BU3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (2)	Behavior:  1.00 (2)		OTA:  3.32

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM, SSDR (2), ERM, MPSR

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:

030605:	NJP for violation of UCMJ, Article 112a:  Wrongful use of cocaine, on or about 030505.
	Award:  Forfeiture of $720.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.

030609:	Applicant’s appealed NJP.  [Extracted from supporting documentation submitted by Applicant.]

030627:	Commander, Naval Air Warfare Weapons Center Division, China Lake, CA, denied Applicant’s appeal.  [Extracted from Applicant’s supporting documentation.]

030630:	Record of medical care from Naval Mobile Construction Battalion Five:  Physical exam states Applicant had a one-time cocaine use.
	[Extracted from Medical Records].

030702:	Commander, Naval Air Warfare Weapons Division directed Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.

030708:	DD Form 214, Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse, authority:  NAVMILPERSMAN, Article 1910-146.

Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030708 under other than honorable conditions for misconduct due to drug abuse (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The Board applied the presumption of regularity of governmental affairs in this case in the absence of a complete discharge package (D). 

Issue 1 – 3:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  The Board discovered no impropriety or inequity and considers the Applicant’s discharge proper and equitable. A service characterization of under other than honorable conditions is warranted when the service member’s actions constitute a significant departure from that expected of a Sailor.  The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for the illegal use of a controlled substance.  The Applicant’s summary of service clearly reflects his disobedience of the orders and directives regulating good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate.  Relief denied.  

Issue 4:  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.  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, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.
 
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), re-issued October 2002, effective 22 Aug 2002 until Present, 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 V, Para 502, Propriety.

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

D.  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.

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