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

 ex-MMFN, USN

Docket No. ND05-00012

Applicant’s Request

The application for discharge review was received on 20040930.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant did not list any as the representative on the 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:

“ My discharge was inequitable because it was based on one isolated incident in almost 3 years of Honorable service.  I received several awards that support my character as being a hard worker, loyal team member, & knowlegable sailor.  I did make one mistake and I am very sorry for it.  However, a person should not have to pay his whole life for one minor mistake.  I do not feel an upgrade to Honorable is warranted, but I also feel an other than honorable discharge is not deserving.  Therefore, I request my discharge be upgraded to a general discharge under honorable conditions.  Let me also state that many factors involved in my life at the time of discharge were ignored by members of the original administration board, and since my discharge I have done nothing wrong or been in trouble of any kind and my life is definitely heading in the right direction.”

Documentation

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

Copy of Honorable Discharge certificate, dtd 9 Sep 2001
Copy of certificate of completion of Naval Nuclear Power Training, dtd 19 Jan 01
Copy of certificate of completion of Nuclear Power Course, dtd 7 July 2000
Copy of letter of commendation, not dated 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	980827 - 990609	COG
	Active:   USN			990610 - 010909	HON

Period of Service Under Review:

Date of Enlistment:  010910		Date of Discharge:  020703

Length of Service (years, months, days):

	Active:    03  00  23
	Inactive:  None

Age at Entry:  20			Years Contracted:  6

Education Level:  12			AFQT:  84

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (5)		Behavior:  2.80 (5)		OTA:  2.90

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

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:

010910:	Applicant reenlisted for 6 years this date. 

020207:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 020204, tested positive for THC.

020220:	Applicant’s refusal of alcohol/drug abuse dependence screening. Applicant signs following statement: “I, E_ S. E_ [Applicant], have been informed on this date of the military requirement for alcohol/drug screening for possible alcohol/drug abuse/dependence.  I understand what was explained to me by EM1 (SS) P.D. M_, and his recommendation to complete and alcohol/drug abuse /dependence screening for my own welfare.  Although I was offered every opportunity to avail myself of the alcohol/drug abuse/dependence screening, I still refuse the screening.  I also understand that my command may choose administrative/disciplinary action based on this refusal, and that Veteran’s Administration Hospital (VA) alcohol dependence treatment will not be made available if I am administratively separated from active duty.”

020226:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance, marijuana.
Award:  Reduction to MMFN, restriction to NAVBASE for 45 days, extra duties for 45 days, forfeiture of $759.00 per month for 2 months.  No indication of appeal in the record.

020301:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020301:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

020503:	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.

020520:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments: “ MM3 E_ is being processed for misconduct due to drug abuse.  On 26 February 2002, MM3 E_ was found guilty at NJP for wrongful use of a controlled substance (marijuana).  On 3 May 2002, an Administrative Board was held in the case of MM3 E_.  The board found by a vote of 3 to 0 that MM3 E_ committed misconduct and voted 3 to 0 that MM3 E_ be separated from the Navy.  Drug use is strictly prohibited by the Navy and is not honorable.  This type of behavior does not align with the Navy’s core values and as such cannot be tolerated.  Therefore, it is my strongest recommendation that MM3 E_ be discharged from the U.S. Navy with an Other Than Honorable discharge.”

020523:	Commander, Submarine Forces, U.S. Pacific Fleet 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 20020703 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).

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.

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  Specifically, the Applicant contends that the administrative discharge board did not consider “factors involved in his life at the time of the discharge”.   The record, however, contains no evidence of any wrongdoing by the administrative discharge board or anyone else involved in the discharge processing.  The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  As such, this Board presumed that Applicant’s discharge was regular in all respects.  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 is not warranted.  

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  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 a nonjudicial punishment proceeding for violations of Articles 112a 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 warranted.

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 5420.174D 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