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

  ex-AR, USN
Docket No. ND05-00341

Applicant’s Request

The application for discharge review was received on 20041215.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  The Applicant requested a documentary record review.  The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050201.  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.  “At the time of my Discharge I was young and my behavior was not of my normal nature and does not reflect who I truly am.  I do take full responsibility for my actions while in the service, but since then have become more mature and realize that my decisions at the time were wrong.  While in the service I always made it to work on time and always completed my tasks satisfactorily.  Prior to my Discharge I was fully qualified to peform all tasks necessary in my rate.  Since my Discharge, I have gotten a degree in massage therapy while working full time and am now wanting to go to college and receive a degree from a university.  I have many other goals I wish to achieve and I wish to reach them without being hindered by my discharge.  Please take my request into serious consideration.

Thank you for your time and consideration.

(Signed) B_ H_ (Applicant)”

Documentation

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

Certificate from Arizona School of Massage Therapy, dated May 23, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	980724 - 990708	COG
	Active:   			None			HON

Period of Service Under Review:

Date of Enlistment:  990709		Date of Discharge:  001121

Length of Service (years, months, days):

	Active:    01  04  13
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  71

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)		Behavior:  1.00 (1)		OTA:  2.67

Military Decorations:  None

Unit/Campaign/Service Awards:  None

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:

000927:	NJP for violation of UCMJ, Article 92: Failure to obey lawful general order, to wit: underage drinking, violation of UCMJ, Article 112a (3 specifications): Wrongful use of a controlled substance, to wit: marijuana, cocaine and methamphetamine.
Award: Forfeiture of $502 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

000930:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due misconduct due to commission of a serious offense and misconduct due to drug abuse.

000930:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

001011:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse (use).  Commanding Officer’s comments (verbatim): On 26 August 2000, AR H_ (Applicant) was on liberty in the Roppongi district of Tokyo, Japan and accepted a marijuana cigarette from a stranger.   AR H_ (Applicant) subsequently tested positive for Methamphetamine and Cocaine during a random urinalysis.  Upon further investigation, AR H_ (Applicant) admitted to smoking marijuana and claimed that the marijuana cigarette he smoked must have been laced with Methamphetamine and Cocaine, which explains the presence of those substances in his urine sample.  In addition, AR H_ (Applicant) tested positive for cocaine on a separate random urinalysis.  On 27 September 2000, AR H_ (Applicant) received Nonjudicial Punishment as a resu1t of underage drinking and wrongful use of marijuana, cocaine, and methamphetamine.
		Clearly, use of illicit drugs is inconsistent with military service.  Because AR H_'s (Applicant's) conduct has significantly departed from the conducted of members of the naval service, I strongly recommend his separation from the naval service with an Other Than Honorable discharge.

001013:	Commander, Carrier Group FIVE 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 20001121 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:  In the Applicant’s case, the Board discovered no impropriety or inequity and considers his discharge proper and equitable. A service characterization of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use and failure to obey an order, substantiating his misconduct.  The Applicant’s summary of service clearly reflects his disobedience of the orders and directives regulating good order and discipline in the naval service, and demonstrated he was unsuitable for further service. It must be noted most Sailors serve honorably; thereby, earning their honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure the undeserving receive no higher a service characterization than is due.  An upgrade to general (under honorable conditions) or honorable as requested would be inappropriate.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits.  This issue does not serve to provide a foundation upon which the Board can grant relief. 

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 the service.  However, the NDRB is authorized to consider outstanding 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   The Board appreciates the Applicant’s efforts to improve his life through education; however, he has not provided sufficient documentation of good character and conduct to mitigate his misconduct while on active duty.  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 additional documentation to support any claims of post-service accomplishments 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 27, effective 27 March 2000 - 11 Feb 2001, 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