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

FOR OFFICIAL USE ONLY

 ex-AOAA, USNR
Docket No. ND05-01070

Applicant’s Request

The application for discharge review was received on 20050614.  The Applicant requests 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 20051215.  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: 

“DURING My time of SERVICE, I ADVANCED to PETTY Officer Third CLASS.  I Thrived In my JOB AS Aviation ORDINANCE MAN.  I HELD This Responsibility IN THE HIGHEST REGARD.  My work RECORD In THAT Position is impeccable.  In This VERY important Position, Shipping AND Receiving HEAVY Artillery, I Feel THAT I HAVE PROVEN Myself to BE AN Extremely Responsible, intelligent, AND Conscientious Officer.  I DEMOSTRATED my Dedication By Being In THE HONOR GUARD AND Volunteering AT Various Military EVENTS SUCH As receptions HELD FOR THE Retiring Chiefs AND officers.  In my TIME Of Service I HAVE SHOWN ALL THE PROVEN Leadership Qualities THAT ANY GOOD PETTY Officer 3RD CLASS SHOULD POSSESS.  THAT ONE THING I REGRET is THE UNFORTUNATE incident With Marijuana.  I HAVE Since GOTTEN HELP A Realized THAT EVEN CASUAL SUBSTANCE ABUSE is DANGEROUS AND Problematic.  I HAVE STOPPED MY CASUAL USE OF Marihuana.  It was AN Unfortunate mistake, But I feel THAT ONE mistake should NOT Blemish my Otherwise EXCELLENT RECORD to include AN Dishonorable Discharge.  I Apologize THAT THIS incident OCCURED AND I feel VERY STRONGLY THAT my Discharge SHOULD BE UPGRADED”

Documentation

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

Applicant’s DD Form 214 (2 copies of Member – 4)
74 double sided pages from Applicant’s service and medical record

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020917		Date of Discharge:  20041122

Length of Service (years, months, days):

	Active:    02 02 06  
	Inactive:  00 03 18

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  8 yr Reserve contract (4 year active duty obligation) 

Education Level:  GED				AFQT:  41

Highest Rate:  AO3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.3 (3)	Behavior:  2.3 (3)		OTA:  2.82

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense 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: 

020917:	Commenced 4-year active duty obligation.

040831:	Applicant submitted to urinalysis.

040910:	NAVDRUGLAB, Jacksonville, reported Applicant’s urine sample, tested positive for THC.

041001:	Applicant waived his right to speak to an attorney and accepted nonjudicial punishment.

041001:	Applicant’s letter to Commanding Officer, Naval Air Station Atlanta in which he admitted to smoking marijuana.

041012:	NJP for violation of UCMJ, Article 112a (wrongful use of a controlled substance).
Award:  Forfeiture of one half pay per month for 2 months and reduction to E-2.  

041014:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse.

041014:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

041028:	Commanding Officer, Naval Air Station Atlanta, recommended to Commander, Navy Region Southeast, that AOAA M_ (Applicant) be discharged under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “I recommend administrative separation for Misconduct Due to Drug Abuse with characterization of service awarded Under Other Than Honorable conditions.”

041105:	Commander, Navy Region Southeast, directed the Applicant's discharge with an 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 20041122 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, processing for separation is mandatory for sailors who abuse illegal drugs, the misconduct for which that Applicant was discharged.  The Applicant’s service record documented nonjudicial punishment (NJP) for his violation of UCMJ 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 a drug free life, educational documents, 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