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

FOR OFFICIAL USE ONLY

   ex-BMSN, USN
Docket No. ND05-00893

Applicant’s Request

The application for discharge review was received on 20050503.  The Applicant requested that his characterization of service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051117.  After a thorough review of all available 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 characterization of the discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“My discharge was inequitable because it was based on one isolated incident in three years and five months of service with no other adverse action.
During my three years and five months of service I received the following:
Sea Service Ribbon & Medal
Global War on Terrorism Ribbon & Medal
National Defense Ribbon & Medal
Armed Forces Expeditionary Ribbon & Medal”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Certificate of completion of Alcohol Misuse and Drug Use Prevention, dtd August 22, 2002
Applicant’s DD Form 214
Evaluation Report and Counseling Record, dtd July 12, 2002
Discharge package, 14 pages from service record

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20010626 - 20020725	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010726		Date of Discharge:  20041229

Length of Service (years, months, days):

	Active:    03 05 04
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  Unknown

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages:

Performance:  4.0 (1)	Behavior:  4.0 (1)		OTA:  3.83

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy Unit Commendation, Battle “E” Ribbon, Sea Service Deployment (2), Global War on Terrorism Expeditionary Service Medal.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events: 

040429:	NJP for violation of UCMJ, Article 90 (disobey a commissioned officer), Article 134 (cohabitation).  
	Award:  Forfeiture of $200 per month for 1 month and restriction for 10 days.  No indication of appeal in the record.

041116:	NAVDRUGLAB, San Diego, reported Applicant’s urine sample, received 041108, tested positive for THC.

041117:	NJP for violation of UCMJ, Article 112a (wrongful use of a controlled substance).
	Award:  Reduction in rank to BMSN, forfeiture of $814 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

041118:	Commanding Officer, USS Cleveland (LPD-7) notified the Applicant of his intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct as evidenced by drug abuse.
 
041118:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

041118:	Commanding Officer, USS Cleveland (LPD-7) recommended to Commander Amphibious Group Three that the Applicant be discharged from the naval service with a characterization of service as Under Other Than Honorable Conditions by reason of Misconduct due to drug abuse.

041201:	Report of Medical Assessment: Applicant set for separation from Navy due to illicit substance use.  Counseling on substance abuse/antabuse.  Applicant found fit for separation.

041227:	COMPHIBGRU THREE directed Applicants discharge under other than honorable conditions by reason of misconduct due to drug abuse.

041229:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse, authority: MILPERSMAN, Article 1910-146.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041229 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions.  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct outweigh the positive aspects of the member's military record.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  Furthermore, separation processing is mandatory for sailors who abuse illegal drugs, the misconduct for which that Applicant was discharged.  The Applicant’s service record documented two nonjudicial punishment (NJP) proceedings for violations of UCMJ Article 90 (disobey a superior commissioned officer), Article 134 (cohabitation) and Article 112a (wrongful use of a controlled substance).  There is credible evidence in the record that the Applicant used illegal drugs.  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.  Separation under these conditions generally results in an under other than honorable conditions, character of service.  The Board could discern no inequity.  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 should 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 Applicant provided no post service documentation for the Board’s consideration.

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 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), re-issued October 2002, effective 22 Aug 2002 until 28 April 2005, 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