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

FOR OFFICIAL USE ONLY

 ex-MS3, USN
Docket No. ND05-01114

Applicant’s Request

The application for discharge review was received on 20050623.  The Applicant requests the Discharge 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 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

Applicant’s issues, as stated on the application: 

“An upgrade is requested because ever since I was discharged from the Navy I have been slowly putting my life together.  Well right now I am at a point in my life where things are finally going right.  For the past seven years have been punishing myself for one big mistake I made.  It cost me a promising Navy career and it also cost the Navy a very good sailor and for that I’m sorry.  I have forgiven myself after all these years and hope the Navy can also forgive me.  My life has changed so much since then, I am now a good Christian with a family whom I love so much, I am embarking on a career in real estate.  And mainly one day I want to proudly show my son the military career his dad once had, so that he can one day be a great sailor.”

Applicant’s Remarks (Taken from the DD Form 293.):

“I have no issues that I can claim except stupidity and that my record before this incident was a very good one.  I have been punished enough.  I would like to enjoy some of the rewards of my good service to my country and only an honorable discharge would allow me that very honorable privilege.  
				Thank you
				[signed] T_ D. W_”

Documentation

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)	19920227 – 19920401		COG
	Active:    USN			19920402 – 19960109		HON

Period of Service Under Review:

Date of Enlistment:  19960110		Date of Discharge:  19980930

Length of Service (years, months, days):

	Active:    02  08  20  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  25

Years Contracted:  4 

Education Level:  12				AFQT:  62

Highest Rate:  MS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.66 (3)		Behavior:  2.66 (3)			OTA:  3.38

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon, Armed Forces Expeditionary Medal, Navy Good Conduct Award, Flag Letter of Commendation.

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: 

960110:	Reenlisted this date for a term of 4 years.

980810:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 980731, tested positive for cocaine.

980827:	NJP for violation of UCMJ, Article 112a:
Specification:  In that Mess Specialist Second Class T_ W_ (Applicant), U.S. Navy, Naval Submarine Base, Kings Bay, Georgia, on or about 27 July 1998, wrongfully used a controlled substance, to wit:  cocaine.
	Award:  Forfeiture of $716.00 pay per month for 2 months restriction and extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

980902:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse as evidenced by wrongful use of cocaine.  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

980902:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

980930:	DD Form 214:  Applicant discharged under other than honorable conditions by reason of misconduct for drug abuse.

981013:	Commanding Officer, Naval Submarine Base, Kings Bay, notified Naval Personnel Command, that the Applicant was discharged under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “As a result of his positive urinalysis for cocaine and the waiver of his administrative board, Petty Officer W_ was discharged on 30 September 1998, with an Other Than Honorable discharge.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980930 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).  The Board presumed regularity in the conduct of governmental affairs (D).

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 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.

The NDRB did note a procedural error in the Applicant’s separation processing.  The record indicates that separation was directed by the Commanding Officer, Naval Submarine Base, King’s Bay, GA.  Separations by reason of misconduct due to drug abuse with a service characterization of under other than honorable conditions must be directed by a general court-martial convening authority (GCMCA).  The Commanding Officer, Naval Submarine Base, King’s Bay, GA, is not a GCMCA.  Under the NDRB’s governing instruction, a discharge shall be deemed proper unless an error of fact, law, procedure, or discretion associated with the discharge existed and thereby prejudiced the Applicant’s rights.  An error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made.  After careful consideration and deliberation, the NDRB concluded that although an error of procedure occurred in the Applicant’s case, such error did not cause prejudice.  As noted above, misconduct by reason of drug abuse typically results in an under other than honorable conditions discharge.  Furthermore, there is nothing unusual or exceptional in the Applicant’s service record that would cause the Board to reasonably believe a GCMCA might authorize a more favorable discharge.  Therefore, the NDRB is convinced that this procedural error was not prejudicial to the Applicant and therefore affords him no relief.  

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 Veterans Administration 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.  

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 any 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), Change 18, effective 12 Dec 97 to 19 May 99, 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, Para 211, Regularity of Government Affairs.

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