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

     ex-EMFN, USN
Docket No. ND05-00399

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.  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 20050412.  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: GENERAL (UNDER 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.  “REQUEST TO UPGRADE TYPE OF DISCHARGE IS FOR VA BENEFITS SPECIFICALLY MGIB.”

Documentation

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

Applicant’s DD Form 214  (Copy 5)
Applicant’s Flag Letter of Commendation, dated from January 6, 2003 to February 18, 2003
ESWS Designation ltr from Commanding Officer, USS TARAWA (LHA 1) to Applicant, dated July 11, 2003
Certificate of Completion, Electricians Mate Class “A” Course, dated April 18, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	010809 - 010815	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  010816		Date of Discharge:  040604

Length of Service (years, months, days):

	Active:    02  09  19
	Inactive:  None

Age at Entry:  25			Years Contracted:  4 

Education Level:  12+ (computer courses)  	AFQT:  46

Highest Rate:  EM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.33 (3)		Behavior:  3.00 (3)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM, SSDR, NUC

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

040409:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 040405, tested positive for methamphetamine.

040414:	Drug and Alcohol Abuse Report:  Methamphetamine abuse was not determined.  Urinalysis was randomly done.  This incident happened on 04 April 04 ashore-off duty.  Commanding Officer states to process for separation, no treatment required or recommended.  Applicant declined to be screened for substance abuse/addiction.

040415:	NJP for violation of UCMJ, Article 112a (1 spec):  Wrongful use of a controlled substance.
	Specification:  In that Electricians Mate Third Class Petty officer J_ F. J_ (Applicant), U. S. Navy, USS TARAWA (LHA 1), on active duty, did, at or near San Diego, California, on or about 5 April 2004, wrongfully use methamphetamine.
	Award:  Forfeiture of $797.00 per month for 2 months (suspended for 3 months), restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

040419:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible is under other than honorable conditions by reason of misconduct due to drug abuse.

040419:	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.

040525:	Commanding Officer, USS TARAWA (LHA 1) recommended to Commander, Amphibious Group Three, that Applicant be separated by reason of misconduct due to drug abuse, as evidenced by CO’s nonjudicial punishment on 15Apr04 for violation of the UCMJ, Article 112(a), wrongful use a of a controlled substance (methamphetamine), with a characterization of service as general (under honorable conditions).  
Commanding Officer’s comments (verbatim):  During a random urinalysis on 5 Apr 04, EMFN J_ (Applicant) provided a positive urine specimen that tested positive for the presence of a controlled substance (methamphetamine).  At a nonjudicial punishment hearing conducted on 15Apr04, I found EMFN J_ (Applicant) guilty of a violation of the UCMJ, Article 112a, wrongful use of methamphetamine.  The finding of guilt was based upon an admission of guilt by EMFN J_ (Applicant) and a preponderance of the evidence submitted.

During his time aboard TARAWA, EMFN J_ (Applicant)’s performance has been superb.  His departmental chain of command relayed high praises and has identified him as a top performer.  At the 15Apr04 NJP, he was honest about his actions and showed himself to be remorseful and apologetic.

In compliance with our Navy’s policy of zero tolerance for drug abuse, EMFN J_ (Applicant) should be administratively separated.  Due to his superb performance aboard TARAWA for almost a two-year period, I recommend that EMFN J_ (Applicant) be discharged with a General characterization of service.

Partial discharge package in service record

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040604 general (under 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:  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.

Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

The following is provided for the edification of the Applicant.  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 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, certification of non-involvement with civil authorities, and proof of a drug-free lifestyle. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his 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 additional documentation to support any claims of post-service accomplishments or any other evidence relating 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