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

 ex-OS2, USN
Docket No. ND05-00653

Applicant’s Request

The application for discharge review was received on 20050302.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050727.  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:

“Did not receive a captains mast or a court martial to pled my innocence.  I want to reenlist in the Navy.  I, along with my chain of command at the divisional Level were not forewarned.  I served 3 years 11 month and 29 days of a four year term I wanted to reenlist.  I am an out standing sailor and made a mistake all I request is a change of Discharge so that I can continue to proudly serve my country.”

Applicant’s Remarks:  “I have included copies of my awards and evaluations to show the board of my good military character.  The evidence that NCIS gathered from me was not given to me.  If. It is possible I will try to get a written record of accomplish who was the true offender.  R_ M_.  Any info you can send me to help me in my endeavor would be appreciated.”

Documentation

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

Applicant’s DD Form 214 (Member 1)
Certificate of Navy and Marine Corps Achievement Medal, dated January 1, 2002
Certificate of completion and has qualified as an Enlisted Surface Warfare Specialist, dated December 17, 2001
Certification of Graduation for Air Intercept Controller, dated December 13, 2002
Certificate of completion for Second Class Petty Officer Leadership Course, dated February 25 - March 8, 2002
Letter of appreciation, dated November 24, 2001
Letter of appreciation, dated January 30, 2001
Evaluation Report and Counseling Record, dated July 14, 2000
Evaluation Report and Counseling Record, dated June 21, 2001
Evaluation Report and Counseling Record, dated March 20, 2002
Evaluation Report and Counseling Record, dated March 13, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	981211 - 990802	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990803		Date of Discharge:  030801

Length of Service (years, months, days):

	Active:    03  11  29
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  47

Highest Rate:  OS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (4)		Behavior:  3.00 (4)		OTA:  3.38

Military Decorations:  Enlisted Surface Warfare Specialist Breast Insignia, Navy and Marine Corps Achievement Medal

Unit/Campaign/Service Awards:  Sea Service Deployment Ribbon with one Bronze Star, Navy Battle “E” Award, Navy Unit Commendation, National Defense Service Medal

Days of Unauthorized Absence:  2

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:

991110:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful written order, underage drinking.
	Award: Restriction and extra duty for 10 days.  No indication of appeal in the record.  [Extracted from Commanding Officer’s letter dated 030725.]

991110:	Retention Warning.  No further information found in service record.  [Extracted from Commanding Officer’s letter dated 030725.]

000805:	Civil Conviction:  Kitsap County District Court, State of Washington, Port Orchard, Washington for violation of driving under the influence of alcohol or drugs on 000728.
Sentence:  Jail for 365 days, fine $1000.00, five years supervised probation.  Jail for 364 days and fine for $300.00 suspended.
	Sentence conditions:  “Defendant shall have no criminal violations of any criminal laws; shall perform eight hours of community service work in 90 days; successfully complete the following – obtain a certified chemical dependency evaluation and comply with any recommended treatment and a DUI Victim’s Panel; driver’s license shall be surrendered and suspended effective 8 August 00 or upon notice from the Washington Department of Licensing; abide by all requirements in the attached Alcohol Related Conviction Conditions.”

000731:	Applicant to unauthorized absence.

000802:	Applicant from unauthorized absence (2 days).

000912:	NJP for violation of UCMJ, Article 86: Unauthorized absence on or about 31 July 2000 until on or about 2 August 2000.
Award: Forfeiture of $585.00 per month for 1 month, restriction and extra duty for 21 days.  Forfeiture of $385.00 suspended for 6 months.  No indication of appeal in the record.

030725:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to a pattern of misconduct; and misconduct due to civil conviction.  Commanding Officer’s comments (verbatim):  “On 29 June 2003, OS2 R_ (Applicant) was overheard discussing a recent shipment of steroids he received in the mail.  The next day, OS2 R_ (Applicant) granted a command investigator permission to search his rack and personal locker.   The search uncovered 400 pills of what was believed to be Dianabol, an anabolic steroid and schedule III controlled substance.  When questioned by an investigator, OS2 R_ (Applicant) admitted to purchasing 500 pills through a web site.  Information on the website clearly shows that OS2 R_ (Applicant) knew what he was purchasing.  He also admitted that he gave 100 of the pills to a shipmate.  The confiscated pills were sent to Naval Criminal Investigative Service Regional Forensic Laboratory in San Diego for analysis where it was determined that the pills were in fact Methandrostenolone, a schedule III controlled substance.  Based on these lab results and OS2 R_ (Applicant)'s own statements, it is clear that he has violated the Navy’s Zero Tolerance and has no potential for future naval service.   I strongly recommend separating OS2 R_ (Applicant) for misconduct due to drug abuse and characterizing his service as Other Than Honorable.”

030725:	COMCARGRU THREE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

The Service Record contains a partial Administrative Discharge Package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030801 under other than honorable conditions for misconduct due to drug abuse (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).  

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 record that the Applicant possessed illegal drugs.  The evidence of record indicates that the Applicant admitted to purchasing 500 pills of Methandrostenolone, a schedule III controlled substance from the Internet.  A search of the Applicant’s rack and personal locker uncovered 400 of these pills.  Mandatory processing for separation is required for sailors who abuse illegal drugs, including possession.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  In the lack of a complete administrative discharge package, the Board presumed that the Applicant was properly notified, processed and discharged under other than honorable conditions by reason of misconduct due to drug abuse.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by a two nonjudicial punishment proceedings for violations of UCMJ Articles 86, unauthorized absence for 2days and Article 92, failure to obey order or regulation by underage drinking and further marred by a civilian conviction for driving under the influence of alcohol or drugs.  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.  Relief denied.

The Applicant implies his discharge is inequitable because he was never awarded nonjudicial punishment or convicted at court-martial for his drug related offenses.  The Applicant’s issue is without merit.  To be legally sufficient, a finding of misconduct due drug abuse requires only a showing, by a preponderance of the evidence that a drug related offense has occurred.  In the Applicant’s case, the Board found overwhelming evidence that the Applicant committed a drug related offense by virtue of his possessing 400 pills of Methandrostenolone, a schedule III controlled substance.  The evidence of record showed to the Board’s satisfaction that the Applicant’s committed misconduct by reason of drug abuse.  Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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.  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.

D.  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.

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