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

  ex-BMSN, USNR
Docket No. ND05-00364

Applicant’s Request

The application for discharge review was received on 20041227.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general (under honorable conditions).  The Applicant requests a documentary record review.  The Applicant listed civilian counsel as the representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050214.  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 respectfully request that the board review my discharge and consider upgrading it to Honorable or in the alternative, General Under Honorable Conditions.  I deeply regret as well as take full responsibility for the isolated incident that resulted in my unfavorable discharge that has severely hampered my ability to achieve the level of success that the United States Navy had prepared me for prior to being discharged.

While serving my thirty-six month enlistment, my conduct, efficiency and proficiency ratings were consistently above standards.  However, this can be greatly accredited to the fact that from the very beginning of my enlistment I was (along with the rest of the plankowners) responsible for setting as well as maintaining an inordinately high level of standards on the U.S.S. Bataan, which proved throughout my enlistment to continuously place us at the top of the fleet as far as a ship and her crew are concerned.  As a result of my hard work and the ever so important attention to detail that as quickly instilled in me upon my arrival at Boot Camp, I received several awards as well as promotions and a gratifying letter of appreciation from my first Captain C. W. W_ for extensive service efforts that were far above what was expected of me during many of our crew’s most trying times.

I have since graduated from college with honors from Ohio University specializing in legal communication.  My plans are and always have been to attend Law School and become an attorney, which was one of the main influences that led me to join the United States Navy in hopes of both fulfilling a sense of patriotic duty and receiving money to help with the enormous costs of college.

I have never been arrested except for minor traffic offenses.  Since my discharge I have been an upstanding citizen and do not use any type of illegal drugs.  It is clearly obvious to me, and anybody who has ever gotten to know me that my youth and immaturity played a large role in the failed drug test and that such misjudgments are highly uncharacteristic of the way that I conduct myself in all that I do.”

Documentation

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

Letter from Division Officer R_ J_, Lt. USN, dated August 4, 2000
Evaluation Reports 19970116 – 19970715 (2 pages)
Evaluation Reports 19970716 – 19980115 
Evaluation Reports 19980116 – 19980715
Evaluation Reports 19981212 – 19990615
Hurricane Disaster Relief, dated 1-30 October 1998
Letter of Appreciation from C_ W_ W_, Commanding Officer, USS BATAAN, dated March 26, 1998
Frocked to Petty Officer Third Class, dated March 3, 1999
Navy Public Affairs Release, No.2259-96  (3 pages)
Graduation with Honors from Ohio University, Athens, Ohio, June 12, 2004 (2 pages)
Letter from Dean K_ K_, College of Communications, dated June 24, 2004
Grade report for J_ K_ G_, (Applicant) for Spring 2003-2004, dated September 08, 2004
School of Communication Studies Lamda Pi Eta (Honors Fraternity) Beta Mu Chapter Executive Board, Treasurer  (2 pages)
Letter from Dean K_ K_, College of Communications, dated April 16, 2004
Lamda Pi Eta, National Communication Association Honor Society, dated May 2, 2003
Character Reference from Dr. C_ B_, Association Professor, Faculty Advisor, Lamda Pi Eta, Beta Mu Chapter, National Honors Fraternity Communications Studies, Ohio University, dated June 18, 2004
Picture of the Beta Theta Pi Fraternity 2002- 2003
Letter of reference from Fraternity Advisor, R_ B_, dated July 14, 2004
Absence of Criminal Record, New Philadelphia, Ohio Police Department County Seat, Tuscarawas County, Ohio, dated July 22, 2004
Letter of reference from M_ J_, Disabled Veteran Outreach Program Specialist, State of Ohio, dated November 9, 2004
Cover letter from the Law Offices of J_ R_ G_, dated December 14, 2004
Cover letter from the Law Offices of J_ R_ G_, dated January 13, 2005
Applicant’s DD Form 214  (Member request copy 4)

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  951222		Date of Discharge:  990818

Length of Service (years, months, days):

	Active:    03  00  00
	Inactive:  00  07  28

Age at Entry:  18			Years Contracted:  8 

Education Level:  12			AFQT:  49

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.75 (4)		Behavior:  4.25 (4)		OTA:  3.75

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:

960819:	Commenced 36 months active duty.

990723:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 990714, tested positive for cocaine.

990805:	Alcohol evaluation done after Applicant “Popped Positive for cocaine”.
	No history of alcohol abuse.
	Recommendation:  Level I, but Applicant refused.

990805:	NJP for violation of UCMJ, Article 112a:  Wrongful use of controlled substance (cocaine).
	Award:  Forfeiture of $589.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

990805:	Commanding Officer notified Applicant of intended recommendation for discharge by reason of misconduct due to drug abuse.  Applicant notified that if discharge is approved, the least favorable characterization of service possible is under other than honorable conditions.

990805:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.

990805:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

990810:	Commander, Amphibious Group TWO, authorized 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 19990818 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.  There is credible evidence in the form of the Applicant’s own admission and a positive urinalysis screening, that he used illegal drugs.  Because of this evidence, the Applicant was awarded nonjudicial punishment (NJP) for a violation of UCMJ Article 112a, wrongful drug use.  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, 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.  In reviewing the Applicant’s post service, the Board was impressed with the efforts he has begun to make in attempting to recoup his reputation, which has been sullied by his misconduct in the Navy.  However, the Applicant has provided insufficient evidence of post-service accomplishments to warrant an upgrade on this basis.  Examples of further documentation that could be provided to the Board include verifiable employment records, documentation of community service, and credible evidence of a substance free lifestyle.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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 any additional 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 24, effective 20 May 99 until 26 March 2000, 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