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

 ex-ETSA, USN
Docket No. ND04-01287

Applicant’s Request

The application for discharge review was received on 20040809.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  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 20041222.  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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I, K_ E_ S (Applicant), am requesting a change in my discharge status to either (a) honorable or (b) general under honorable conditions with the latter being the primary choice in the event that only one choice is applicable.

I am requesting this review for a number of reasons with the primary reason being I am extremely close to getting employment from my local municipality working in my town’s sheriff's office.  I also would like to have the discharge updated for future employment opportunities as well as for general peace of mind.

My charge, Misconduct-Drug Use, is not a charge I will deny.  I would also like to explain the situation that led forth to this I lived off-base in a trailer with my then-roommate, M_ A_.  One night (I believe April 11th, 1993 but the exact date eludes me) while cleaning his guns, he accidentally shot & killed himself with a .38 caliber pistol loaded with hollow-point talon rounds from point-blank range.  I was there to witness all this.  My roommate did occasionally smoke marijuana & had done so that evening.  Upon seeing my roommate & close friend on the living room floor with his brains & skull fragments on the ground, I was in a state of panic & yes, I took a pull off of M_’s pipe while I got my head together & said as much to the police when they arrived.  I was also quite intoxicated having drank three shots of liquor as well.

I am not saying what I did was right but I am asking for consideration due to the circumstances that occurred.  I will not lie & say I never knew about my roommate's habits but will say I had never smoked before that; 1) the “contact” was always more than enough for me & 2) I had previously underwent DAPA counseling & was not drinking, let alone smoking marijuana.”

Documentation

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

None were submitted

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  900927		Date of Discharge:  930920

Length of Service (years, months, days):

	Active:    02  11  24
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  93

Highest Rate:  ET3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.55 (4)	Behavior:  2.35 (4)		OTA:  2.40

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, BER

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 3630620.

Chronological Listing of Significant Service Events:

900927	Applicant briefed on Navy's policy of drug and alcohol abuse.

920826:	Counseled for failure to meet the physical readiness standards of OPNAVINST 6110.1D due to failing to participate in the official PRT.  Applicant notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning

930219:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0730, 930121 to 0715, 930122, violation of UCMJ, Article 134: Incapacitated for the proper performance of duties due to previous overindulgence of intoxicating liquor on 930121.
	Award: Restriction and extra duty for 30 days, reduction to E-3.  Reduction suspended for 6 months.  No indication of appeal in the record.

930222:	Retention Warning:  Advised of deficiency (Unauthorized absence from 0730, 930121 to 0715, 930122.  Incapacitated for the proper performance of duties due to previous overindulgence of intoxicating liquor, 930121.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930727:	Vacate reduction to E-3 awarded at Commanding Officer’s NJP dated 930219.

930806:	NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana on 930717.
Award: Forfeiture of $520.00 per month for 2 months, restriction for 60 days, reduction to E-2.  No indication of appeal in the record.

930810:	DAPA evaluation for drug abuse.  Applicant denies use of all substances but positive THC on urine.  Denies problem, does not desire treatment.  No treatment due to not amenable.  Recommend legal/admin disposition.  

930810:	Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty.  Abuse denied.  Random urinalysis 930717.  Physician found Applicant not dependent and recommended separation.  Commanding Officer recommended separation.  Comments: Military Action: 930219 CO’s NJP Article 86: Unauthorized absence.  Article 134: Incapacitated for the proper performance of his duties due to previous overindulgence of intoxicating liquor.  Awarded:  Reduction suspended for 6 months and 30 days restriction.  930717 tested positive for THC, suspended reduction in rate vacated.  Reduced in rate to ETSN.  930806 CO’s NJP Article 112A: wrongfully use marijuana.  Awarded 60 days restriction, reduction to next inferior pay grade and forfeiture of ½ pay per month for 2 months.  The Commanding Officer has determined that this member does not possess exceptional potential for further productive military service and is processing him for administrative separation.  Applicant completed Level II 930527 for alcohol abuse.

930826:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

930826:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.  Applicant did not object to separation.

930902:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

930915:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930920 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).

The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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.

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions [or] General discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by 2 nonjudicial punishment proceedings for violations of Articles 86, 112a, and 134 of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  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 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 15560C), Change 5/93, effective 
05 Mar 93 until 21 Jul 94, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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