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

ex-RMSN, USN 
Docket No. ND04-00877

Applicant’s Request

The application for discharge review was received on 20040507.  The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions) and the reason for the discharge be changed to “Administrative – RE-1.”  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 20041008.  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 and narrative reason of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“ Issue #1   WITNESS WAS INDUCED TO SAY MARIJUANA.  QUESTIONS NOT PROERLY ASKED.  DIRECT EXAMINATION – RMCN JOHNSON – RECORD OF PROCEEDINGS PAGE 3 PARAGRAPH 2-3 AND 5.  ALSO PAGE 6 PARAGRAPH HIGHLIGHTED.

ISSUE # 2  RMSN CORTES UNAWARE CIGARETTE HAD DRUG IN IT.  DIRECT EXAMINATION – RMCM JOHNSON – RECORD OF PROCEEDINGS PAGE 2 PARAGRAPH 4 AND PAGE 4 PARAGRAPH 2-3 AND PAGE 5 PARAGRAPH 2.

ISSUE # 3  BEHAVIOR/CONDUCT- PAGE 4 (PROCEDDINGS) PARAGRAPH1.  PAGE 5 PARAGRAPH 1 AND 3.

ISSUE # 4  PERFORMANCE EVALUATION – PRIOR TO ANDAFTER MAST ALL PAGES 1 THRU 6.  HIGHLIGHTED

ISSUE # 5   RESUME PAG 1

ISSUE # 6  SERVICE EXCELLENCE AWARD (CITICORP)

ISSUE # 7  MY LETTER TO ALL DISTINGUISHED MEMBERS OF THE BOARD.

ISSUE # 8  BLK. # 3 OF THIS FORM D. CHANGE REASON FOR DISCHARGE TO: ADMINISTRATIVE.  REENLISTMENT CODE – RE-2 (ALL THIS BECAUSE I WANT TO JOIN THE RESERVE (NAVAL) AND CONTINUE SERVING THE NATION).”

Additional issues submitted by the Applicant:

“Distinguished members of the board;

I believe my discharge was inequitable because I provided substantial evidence with the testimony of the witness stating he had given me a cigarette mixed with a drug.  At the time of his testimony this witness was under extreme pressure.  He even thought the Navy was going to take actions against him, therefore during his testimony he was basically induced into error or mistakenly acknowledge having mixed the cigarette with marihuana instead of cocaine.  During his interrogation he was never questioned if in fact, like he had told me that night and like I stated from the beginning of this incident, he mixed the cigarette with cocaine.  That question was a critical one at that time.  I have never used drugs while on active duty, and my testimony and what my witness told me that night is nothing but the truth. Never did, never have and never will.
I also provided testimony of all my superiors and supervisors in regards to my conduct and behavior while on active duty at NRRF Sabana Seca.

I have been thinking about this entire incident for the past ten years and I’m regretting myself for not coming forward in the early years of my discharge.  But there is a huge difference today.  Today, I’m 38yrs old, still married to the same woman and have a 7yrs old wonderful son.  One of these days my son will be old enough to ask me about my years in the service (NAVY). - By the way he’s already in that track - and I will like, when time comes, to be able to show him a good set of discharge papers (not the ones I have now) to encourage him, to show him how proudly and dedicated his dad was to the NAVY.

So please, review my case and give my boy a chance to say that his dad served the nation proudly and wore the uniform of the US NAVY with pride.

Thanks in advance.

REGARDS;
R_ M_ C_ (Applicant)”

Documentation

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

Applicant’s DD Form 214
Applicant’s letter
Citicorp Award dated 1998
Copy of Applicant’s Administrative Board proceedings
Copy of Applicant’s last three evaluations from service record
Applicant’s resume

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	841003 - 850106	COG
	Active:   USN			850107 - 891114	HON

Period of Service Under Review:

Date of Enlistment:  891115		Date of Discharge:  930517

Length of Service (years, months, days):

	Active:    03  06  03
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  20

Highest Rate:  RM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.9 (6)	Behavior:  3.6 (6)		OTA:  3.7

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, OSR (4th award), NDSM, SSDR, SOSR

Days of Unauthorized Absence: 6

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

900608:	NJP for violation of UCMJ, Article 86: UA.
	Award:  Reduction in rank (suspended 6 months).  No indication of appeal in the record.

900720:	NJP for violation of UCMJ, Article 86: UA, violation of UCMJ, Article 92: Disobey lawful order.
Award:  Reduction in rate (suspended 6 months).  No indication of appeal in the record.

900720:           Rate suspended vacated.

930107:	NAVDRUGLAB, Jacksonville, Florida, reported Applicant’s urine sample, received 921223, tested positive for [cocaine].

930203:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a positive urinalysis for cocaine.

930208:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

930303:	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.

930401:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. 

930430:	BUPERS 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 19930517 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 1-8:  There is credible evidence in the record that the Applicant used illegal drugs.  An Administrative Discharge Bord, after consideration of the evidence, found that Applicant had used an illegal drug.  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 NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, will change the reason for discharge if such a change is warranted.  The summary of service clearly documents that drug abuse was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why he was discharged.  To change the Narrative Reason for Separation would be inappropriate.  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.  

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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.  Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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