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

   ex-BM3, USN
Docket No. ND05-00132
 
Applicant’s Request

The application for discharge review was received on 20041020.  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.  Subsequent to the application, Applicant obtained representation from the American Legion.

Decision

A documentary review was conducted in Washington, D.C. on 20050323.  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:

1.  “I was forced to a special court-martial due to violation of Article 112a, unless I waived my right to an admin board.

My last duty station was Marine Corp Base Hawaii (MCBH).  I worked at water front operation/HQBN.  I had great evals.  The CO at the time was LTCOL B_.  Three months before my misconduct there was a similar case with a sailor of the same company.  He was awarded NJP with OTH.  He then accepted his right to an admin board.  He was awarded by the board a general under honorable condition.  My OIC informed our whole department that the CO was very upset and anyone who violated Article 112a he would award them with the highest punishment possible (Special-Court martial) I was advised by JAG to waive my right to an admin board.  She felt the CO would be satisfied enough if I just accepted the OTH and he would not push for a special-court martial for such a simple/and cut & dry case.  As long as I didn’t try to push for an admin board in fear of me getting a lesser discharge as did the sailor before me.

I am not denying my faults and the zero tolerance expectations of the U.S. Armed Forces.  I agree and except my misconduct 110%.  I am a good man with a family.  I was a great sailor who made the dumbest and stupidest mistake in my life.  Hopefully for me and my family the Board understands and will grant me this request.”

Additional issues submitted by Applicant’s representative (American Legion):

2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application. 
_______________________________________________________________________

In accordance with Title 32, CFR, Section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition.

Review of the available records reflect that this former member had a prior period of honorable service, maintained satisfactory 3.20 performance and 3.00 conduct markings with a 3.12 OTA and earned the NDSM, (2), SSDR (3), GCM (2), NER, MUC, AFEM, NMCOSR, ESWSI, FLOC (2) and HSM.  He was awarded NJP on 031024 for VUCMJ, Article 112a.  Following due process notifications which are of record, he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by NAVMILPERSMAN, Article 1910-146.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because it is too harsh in light of the fact that his CO deprived him of his due process rights by threatening to court martial him if he did not accept an UOTHC discharge and forego an Administrative Discharge Board review.  He has not submitted additional documentation for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR 		950314 - 000925	HON
	Active:    None

Period of Service Under Review:

Date of Enlistment:  000926		Date of Discharge:  031119

Length of Service (years, months, days):

	Active:    03  01  24
	Inactive:  None

Age at Entry:  23			Years Contracted:  2 (15 months extension)

Education Level:  12			AFQT:  31

Highest Rate:  BM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (5)		Behavior:  3.00 (5)		OTA:  3.12

Military Decorations:  ESWS

Unit/Campaign/Service Awards:  NDSM (2), GCM (2), NER, MUC, AFEM, OSR (4), SSDR (3), FloC (2), HSM

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:

031006:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 031002, tested positive for THC.

031022:	Pre-Trial Agreement:  The Applicant agrees to plead guilty at nonjudicial punishment and unconditionally waive any right to an enlisted administrative separations board in exchange for the his case being dismissed from special court-martial and protection from forfeitures.

031024:	NJP for violation of UCMJ, Article 112a: Tested positive on a urinalysis for marijuana on 030917.
	Award: Restriction and extra duty for 45 days, reduction to E-4.  Not appealed.

031024:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse.  The Applicant was notified that if separation is approved, the least favorable characterization of service is under other than honorable conditions.

031024:	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.

031027:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

031106:	Commanding General, Marine Corps Base Hawaii, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

031106:	Commanding General, Marine Corps Base Hawaii, indefinitely prohibited the Applicant from entering the installation designated as Marine Corps Base Hawaii, effective this date.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031119 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:  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 implies that he was treated unfairly by his commanding officer during his administrative processing.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his commanding officer treated him in an unfair manner.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.

There is credible evidence in the record that the Applicant used illegal drugs.  The Applicant, through a specially negotiated pre-trial agreement, was awarded nonjudicial punishment (NJP) for a violation of UCMJ Article 112a, wrongful drug use.  The Applicant implies that his discharge was inequitable because other servicemembers, similarly situated, received general discharges.  The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  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.  As such, relief is 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 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.  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