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

 , ex-MSSN, USN
Docket No. ND05-00086

Applicant’s Request

The application for discharge review was received on 20041015.  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 review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050118.  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:

“1.  Sir, I joined in Feb 1987, and I have never knowingly used drugs a day in my life.  I have had my share of overnight liberties, and I have awoken in strange places unsure of the previous night.  I wasn’t the best of sailors when I first joined, but I did my best and my evals always went up.  I’ve been in harm’s way quite a few times and pulled hazard pay often.  Being discharged was the worst thing that ever happened to me.”

2.  I don’t know what else to say, my life has been one disaster after another since discharged, and the discharge I recieved is truely unwarrented.  Eight of the best years of my life were in the Navy.”

Documentation

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

Copy of DD Form 214
Character Reference Letter from O_ L, LCSW-C, Clinical Psychotherapist
Character Reference Letter from Rev. Dr. O_ G_, Pastor
Certificate of Marriage
E.P.A., Type I Type III Certification Test Results
Diploma in Refrigeration, Heating, and Air Conditioning, TESST College of Technology
Transcript, TESST College of Technology
Letter of Recommendation from G_ K_
Copy of Applicant’s resume

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	870129 - 870216	COG
	Active:   USN			870217 - 930216	HON

Period of Service Under Review:

Date of Enlistment:  930217		Date of Discharge:  951206

Length of Service (years, months, days):

	Active:    02  09  20
	Inactive:  None

Age at Entry:  26			Years Contracted:  4

Education Level:  12			AFQT:  48

Highest Rate:  MS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.93 (3)		Behavior:  3.86 (3)		OTA:  3.8

Military Decorations:  None

Unit/Campaign/Service Awards:  NER, AFEM, SSDR, JMUA, CGSOSR, OSR, GCM

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:

930217:	Applicant reenlisted for a period of four years.

941210:	Applicant commenced a period of unauthorized absence this date.

941229:	Applicant surrendered from unauthorized absence this date.

950122:	Unauthorized absence from 941210 to 941229 excused as unavoidable, Applicant charged 20 days leave.

951017:	NJP for violation of UCMJ, Article 112a:  Wrongful use of marijuana.
	Award:  Forfeiture of $500.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

951017:	Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all punishments under the UCMJ in current enlistment.

951018:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

951019:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

951031:	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 19951206 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 and 2:  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  The Applicant bears the burden of overcoming the presumption of regularity through the presentation of substantial and credible evidence to support his issue.  There is credible evidence in the record that the Applicant used an illegal drug, marijuana, by virtue of his nonjudicial punishment for a violation of UCMJ Article 112a.  The Applicant has submitted no documentation or other evidence to rebut the presumption that the Applicant wrongfully used marijuana.  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.  As such, the Board presumes that the Applicant’s discharge was both proper and equitable.  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 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 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 9/94, effective 
22 Jul 94 until 02 Oct 96, 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