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

 ex-GM3, USN
Docket No. ND04-01379

Applicant’s Request

The application for discharge review was received on 20040901.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  On DD Form 293, the Applicant requested a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  Subsequent to the submission of his Application, the Applicant provided a change of address and requested a personal appearance hearing before the board in the Washington National Capital Region.  The Naval Discharge Review Board (NDRB) conducted a documentary review, as originally requested by the Applicant.  

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:  GENERAL (UNDER 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:

1.  “I respectfully request an upgrade in discharge due to the fact that the drug charges were malicious, and totally false.  I was a top sailor, E-5 in only 13 months.  I would have been a top operator in the SEAL teams.  I involved myself in any command activity I could help out on.  In no way did I ever use drugs in the service, or go near them.  I want to be in the service for another 20, plus, years, and I want to be allowed back in as an E-5.  I will fight for as long as it takes.”

Applicant provided the following remarks on the application (DD Form 293):

“I apologize for being unable to attend a Board, but I now have to work 3 jobs to support my family.  But I will fight this discharge, and my discharge code.  I will not rest until I am again on the road to being a SpecWar Operator.”

Documentation

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

Quest Diagnostics Laboratory Report dtd 031026
A.T.C. Drug Testing memo dtd 031029
Applicant’s Statement to the Board, undtd
Applicant’s DD Form 214
CO, Naval Special Warfare Center ltr, dtd Nov 18, 2002, authorizing Applicant to assume title and wear uniform of Second Class Petty Officer

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)		000825 - 010709	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  010709		Date of Discharge:  040312

Length of Service (years, months, days):

	Active:    02  08  04
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (12 month extension)

Education Level:  12			AFQT:  76

Highest Rate:  GM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.5 (2)		Behavior:  2.67 (3)		OTA:  3.1

Military Decorations:  None

Unit/Campaign/Service Awards:  Battle “E” Ribbon, NDSM, SSDR, Expert Rifle Ribbon, Expert Pistol Ribbon

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

030922:	NAVDRUGLAB, San Diego, CA:  Urine sample received 16SEP03, positive for cocaine.

030925:	NJP for violation of UCMJ, Article 112a:  Wrongful use of a controlled substance (cocaine).
	Award:  Forfeiture of $824.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-4, and separate.  
Applicant appealed the NJP on 29SEP03, appeal denied 7OCT03.

031007:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse.

031007:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

040122:	An Administrative Discharge Board, based upon a preponderance of the evidence, by vote of 2 to 1 found that the Applicant had committed misconduct due to drug abuse, by vote of 2 to 1 that the misconduct warranted separation, and by unanimous vote recommends the characterization of service upon discharge be General (Under Honorable Conditions).

040305:	Commanding Officer, USS BONHOMME RICHARD, advised CNPC of Applicant’s discharge with a General (Under Honorable Conditions) by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments:  [I have carefully reviewed the evidence contained in enclosure (1) (Record of Proceedings 1 Mar 04).  I concur with the findings of the Administrative Board and their recommendation that GM3 M_ (Applicant) be separated from the Naval service with a General Discharge.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040312 with a General (Under 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.  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 or characterization of general (under honorable conditions).  The Applicant’s statements and submissions were not sufficient to overturn the presumption of regularity in the Applicant’s case.  The Applicant was found guilty at nonjudicial punishment of a violation of Article 112a of the UCMJ.  An Administrative Discharge Board determined that the Applicant committed misconduct and that the misconduct warranted separation.  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 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 sufficient documentation for the Board to consider.  Relief denied.

The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and the NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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), 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 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