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

FOR OFFICIAL USE ONLY

  ex-BMSN, USN
Docket No. ND05-00959

Applicant’s Request

The application for discharge review was received on 20050519.  The Applicant requests the Discharge 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 designated Civilian Counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060302.  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 and reason for 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

Applicant’s issues, as stated on the application:

“Seeking benefits and compensation from V.A..”

Documentation

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

Only the service record was reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19820629 – 19830106		COG
	Active:   USN 			19830107 – 19861210		HON

Period of Service Under Review:

Date of Enlistment:  19861211		Date of Discharge:  19930722

Length of Service (years, months, days):

	Active:    06  07  12 
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  25 

Years Contracted:  6 (8 month extension)

Education Level:  12 1/2				AFQT:  24

Highest Rate:  BM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.8 (9) 		Behavior:  3.6 (9)		OTA:  3.84 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Meritorious Unit Commendation, First Good Conduct Medal, Sea Service Deployment Ribbon, Battle “E” Ribbon, Letter of Commendation, Sharpshooter .45 CAL Pistol Ribbon.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events: 

830107:	Applicant acknowledges and signs the Navy Drug Abuse Statement of Understanding.

850209:	NJP for violation of UCMJ, Article 112a: Wrongfully use a controlled substance (marijuana). 

850209:	Retention Warning for violation of UCMJ, Article 112a (marijuana

861211:	Reenlisted this date for a term of 6 years.

930112:	NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 921217, tested positive for THC.

930204:	NJP for violation of UCMJ, Article 112a: Wrongfully use a controlled substance to wit: marijuana on or about 921214.
Award:  Forfeiture of $630 per month for 2 months, restriction to SUBASE for 45 days, extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

930205:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by violation of UCMJ Article 112a.

930330:	NAVDRUGLAB, Norfolk, VA, reported Applicant’s retested urine sample, tested positive for THC.

930412:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

930511:	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 such misconduct warranted separation, and recommended discharge under other than honorable conditions.

930610:	Commanding Officer, Naval Submarine Support Facility New London recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “I 

concur with the recommendation of the Administrative Board that BM3 B_ (Applicant) be separated from the Naval service and that his discharge be characterized as under Other than Honorable conditions.  On February 1993 he was taken to Commanding Officer’s nonjudicial punishment for violation of the UCMJ, Article 112a, wrongful use of THC (Marijuana).  By this wrongful use of marijuana, BM3 B_ (Applicant) blatantly disregarded authority, rules, and regulations concerning the Navy’s zero tolerance drug policy.  This misconduct is unacceptable and he is not fit for further Naval service.  I strongly recommend separation of BM3 B_ (Applicant) from the Naval service by reason of misconduct due to drug abuse and that his discharge be characterization as Other than Honorable.”

930702:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930722 by reason of misconduct due to drug abuse (A and B) with a service characterization of under other than honorable conditions.  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).  

The Applicant is requesting an upgrade of his discharge so he can receive benefits and compensation from the US Department of Veteran Affairs. The NDRB advises the Applicant that the US Department of Veteran Affairs 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. Relief is not warranted.

The NDRB further advises the Applicant that 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 or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by a nonjudicial punishment proceeding for a violation of Article 112a of the UCMJ. Violations of Article 112a are considered serious offenses and typically warrant a punitive discharge if adjudged at a special or general court-martial. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

As of this time, the Applicant has not provided any post-service documentation for the Board to consider.  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 documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective 
05 Mar 93 until 21 Jul 94, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a (wrongful use of a controlled substance).

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