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

ex-ETSN, USN
Docket No. ND04-00920

Applicant’s Request

The application for discharge review was received on 20040512.  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 20041105.  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:

“Issues to be addressed:

Why an upgrade of change is requested and justification for the request.

Item 1.

My (ETSN B_ K_ S_ (Applicant)) discharge was inequitable because it was based on one isolated incident in 65 months of service with no other adverse action.

Item 2.

The discharge is improper because the Applicant’s pre-service civilian activity, properly listed on his enlistment documents, was used in the discharge proceedings.

Item 3

Was not given a fair trial and wasn’t able to receive witness to defend me during administrative board.

Item 4

Post service activity demonstrates continued positive civilian and community contributions.

Signature of Applicant:	Date: 04/22/04”

Documentation

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

Applicant’ s DD Form 214
Texas Real Estate Commission paper
Texas Southern University (not official transcript), dated April 23, 2004 (3 pages)
Honorable discharge certificate, dated August 24, 2000
Eighty-seven pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960701 - 960826	COG
	Active:   USN			960827 - 000824	HON

Period of Service Under Review:

Date of Enlistment:  000825		Date of Discharge:  020201

Length of Service (years, months, days):

	Active:    01  05  07
	Inactive:  None

Age at Entry:  26			Years Contracted:  5

Education Level:  12			AFQT:  Unknown

Highest Rate:  ET3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.75 (4)	Behavior:  3.40 (5)		OTA:  3.57

Military Decorations:  None

Unit/Campaign/Service Awards:  RMM, NBER, SSDR (2), GCM, N&MCOSR (2), N&MCAM (2)

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:

011016:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 011009, tested positive for THC.

011018:	NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substance on 011009, to wit: marijuana.
	Award: Forfeiture of $693 per month for 2 months, restriction and extra duty for 45 days, reduction to ETSN.  No indication of appeal in the record.

011101:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

011101:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

011109:	Naval Medical Center San Diego, Substance Abuse Rehabilitation Department, evaluation. Applicant denies use of cannabis, says positive urinalysis related to second-hand cannabis smoke.

011219:	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.

020116:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020118:	Commander, Navy Region, Southwest 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 20020201 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 states his discharge was based on one isolated incident in “65 months.”  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.  No other Narrative Reason for Separation could more clearly describe why 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.

Issues 2, 3.   The Applicant contends that his discharge was improper because his pre-service civilian activity was considered and that he was not permitted to have a witness appear before his administrative discharge board.  Concerning the pre-service civilian activity, a drug waiver for marijuana use was entered as one of the Recorder’s exhibits.  Regarding the Applicant’s contention that he was denied the opportunity to call a witness to the administrative discharge board, the board’s senior member rejected the request because that witness had already submitted a written statement as a character reference.  The record contains no evidence of any wrongdoing by anyone in the administrative discharge processing of this case.  Relief denied.  

Issue 4.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  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 impropriety 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's efforts need to be more encompassing than those provided.  For example, the applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence , and certification of non-involvement with civil authorities, 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 misconduct that resulted in his characterization of discharge.  Therefore, no relief will be granted  

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