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

  ex-SM3, USN
Docket No. ND05-00565

Applicant’s Request

The application for discharge review was received on 20050214.  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.  Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary review was conducted in Washington, D.C. on 20050713.  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 am requesting an upgrade due to the facts that I served honorably and never had any disciplinary actions taken against me until this incident.  The incident occurred at the local sports bar in Pensacola FL.  Someone had placed the controlled substance in my drink and the individual that swapped drinks with me was underage and failed to come forward to clear my name.  I never used drugs knowingly and would not have jeopardized my career with such a senseless act.  I respectfully request upgrade of the discharge as I feel I was wronged by someone else, yet I am the one suffering due to another individual’s actions.”

Additional issues submitted by Applicant’s counsel/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 also 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 the Applicant’s petition.

Review of the available records reflect that this former member maintained satisfactory 3.67 performance / 2.67 conduct markings and earned the NDSM, AFEM (2), SSDR (3), NUC (2) and GCM (2).  She was awarded NJP on 030424 for VUCMJ, Article 112a.  Her due process included an ADB which determined that she committed misconduct due to drug abuse and recommended UOTHC separation.  On 030926, she 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 her discharge be upgraded because she did not knowingly use any illicit drug.  She has submitted 8 pages of additional documentation attesting to her good post-service character, hard work and clean record 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
Character reference from J_ H. D_, dated January 19, 2005
Character reference from D_ L. D_, dated January 28, 2005
Character reference from B_ B_, dated January 20, 2005
Character reference from Pastor E_ L_, dated January 10, 2005
Character reference from V_, dated January 30, 2005
Police record check, dated February 1, 2005 (3 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR		951229 - 960624	To report to ACDU
	Active:   USNR		960625 - 000503	HON

Period of Service Under Review:

Date of Enlistment:  000504		Date of Discharge:  030926

Length of Service (years, months, days):

	Active:    02  04  23
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  36

Highest Rate:  SM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (5)		Behavior:  2.60 (5)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM (2), SSDR (3), NUC (2), GCM (2), NDSM

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:

000504:	Applicant reenlisted USN for 4 years.

030123:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 010117, tested positive for cocaine.

030424:	NJP for violation of UCMJ, Article 112a:  Wrongfully use a controlled substance, to wit: cocaine on 030114.
	Award:  Forfeiture of $912 per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

030630:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse.  The least favorable characterization of service possible is under other than honorable conditions.

030630:	Applicant advised of rights and having consulted with certified counsel, elected to appear before an Administrative Discharge Board.

030702:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

030806:	Letter of Deficiency submitted on Applicant’s behalf by detailed defense counsel.

030819:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

030908:	Commander, Naval Education and Training Command 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 20030926 under other than honorable conditions for misconduct due to drug abuse (A).  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 (B and C).

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 contends that her discharge was improper because she never used illegal drugs.  Applicable regulations permit the upgrade of a discharge on propriety grounds if it can be determined that the discharge is erroneous as a matter of fact, law, procedure, or discretion.  The Applicant must establish her claims through the presentation of substantial and credible evidence to support her issue.  A thorough review of all of the evidence submitted and of the Applicant’s service record has failed to convince the Board that any impropriety or inequity occurred.  The Applicant’s urine sample tested positive for cocaine on 010117.  As a result of this positive urinalysis, the Applicant was awarded nonjudicial punishment for a violation of UCMJ Article 112a.  The record also indicates that the Applicant showed deception on a polygraph examination concerning illegal drug use.  Finally, an administrative discharge board was properly convened, heard all of the evidence of the case, and concluded that the Applicant had committed misconduct by reason of drug abuse.  The Applicant has submitted no credible or substantial evidence to this Board that contests these facts.  The Applicant’s statements alone do not substantiate her claims.  As such, the Board concluded unanimously 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 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 could be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Board received and considered all of the Applicant’s submissions, including her letters of recommendation and police records check.  After careful consideration, the Board concluded the Applicant’s post-service conduct has been insufficient to mitigate her misconduct while in the Naval service.  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 any additional documentation to support any claims of post-service accomplishments or any other evidence related to her 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 V, Para 502, Propriety.

C.  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