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

FOR OFFICIAL USE ONLY

  ex-MMFN, USN
Docket No. ND05-01076

Applicant’s Request

The application for discharge review was received on 20050616.  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 did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051221.  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

Issues, as stated

No issues were submitted by the Applicant.

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

Inactive:  USNR (DEP)	20001107 – 20011031	COG (Failed to Graduate)
Inactive:  USNR (DEP)	20011116 – 20011210	COG
Active:    None

Period of Service Under Review:

Date of Enlistment:  20011211		Date of Discharge:  20041221

Length of Service (years, months, days):

	Active:    03  00  10  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	6 days
	Confinement:			None

Age at Entry:  19 

Years Contracted:  4 

Education Level:  11				AFQT:  50

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.75 (4) 		Behavior:  2.25 (4) 		OTA:  2.62

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: 

021201:	Applicant to unauthorized absence at 1450 on 021201.

021207:	Applicant from unauthorized absence at 1900 on 021207 (6 days/surrendered).

041021:	Applicant’s acknowledgement and waiver of rights.

041022:	U.S Naval Criminal Investigative Service: On 041021, LT D_ W_, USN, Staff Judge Advocate, Naval Submarine Support Center (NSSC) requested assistance regarding positive urinalysis result for S/J_ (Applicant).  On 041021, S/J_ (Applicant) was advised of his Article 31 (b) rights, which he acknowledged and waived in writing.  S/J_ (Applicant) subsequently confessed to smoking marijuana with three civilians while in a vehicle parked outside of Club Intuition, New London, CT.  S/J_ (Applicant) had not seen these civilians since he smoked marijuana with them.  According to S/J_ (Applicant), this was the first and only time he had used illicit drugs while in the USN.

041110:	NJP for violation of UCMJ, Article 86:  Absent from organization.
Violation of UCMJ, Article 112a.
	Award:  Forfeiture of $863 per month for 1 month, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record [Extracted from Commanding Officer’s Letter of Recommendation in case file].

041110:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse.  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

041110:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

041012:	Commanding Officer, Naval Submarine Support Center, New London recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “Due to this member’s use of illicit drugs while on active duty I recommend that he be discharge from the naval service with an Other than Honorable discharge.”

041116:	Commander, Submarine Group TWO 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 20041221 by reason of misconduct due to drug abuse (A) 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 (B and C).

There is credible evidence in the record that the Applicant used illegal drugs.  The Applicant was awarded nonjudicial punishment (NJP) for a violation of UCMJ Article 112a, wrongful use, possession, etc., of controlled substances and Article 86, absent from organization.  Additionally, the Applicant provided a written statement to NCIS agents confessing his illegal drug use.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  Mandatory processing for separation is required for sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The Applicant was properly notified, processed and discharged under other than honorable conditions by reason of misconduct due to drug abuse.  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.

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 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