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

FOR OFFICIAL USE ONLY

ex-AO3, USN
Docket No. ND05-01477

Applicant’s Request

The application for discharge review was received on 20050908.  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 20060614.  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 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 as it was due to an isolated incident of unintentional consumption, in 9 years of meritorious service.”

Documentation

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

DrugTest results, dtd May 9, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19930212 - 19931117	ELS
		USNR (DEP)	19931118 – 19931221	COG
	Active:   USN	19931222 - 19971220	HON

Period of Service Under Review:

Date of Enlistment:  19971221		Date of Discharge:  20030210

Length of Service (years, months, days):

	Active:    05  01  20
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  22

Years Contracted:  6 (14 month extension)

Education Level:  12				AFQT:  88

Highest Rate:  AO2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.7 (3)			Behavior:  3.0 (3)		OTA:  3.24

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Good Conduct Award (3), Armed Forces Expeditionary Medal, National Defense Service Medal (2), Battle “E” Ribbon, Sea Service Deployment Ribbon (2), Navy Unit Commendation, Meritorious Unit 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: 

971221:	Reenlisted this date for a term of 6 years.

030110:	NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 030106, tested positive for THC.

030128:	NJP for violation of UCMJ, Article 112a:
	Specification: In that AO2 K_, J_ G. (Applicant), U.S. Navy, Naval Air Maintenance Training Unit Jacksonville, Florida, on active duty, was, on or about, 06 January 2003 wrongfully use marijuana, a controlled substance.
	Award:  Forfeiture of $912 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

030128:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as other than honorable conditions by reason of misconduct - drug abuse.

030128:	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.

030129:	Commanding Officer, Naval Air Maintenance Training Unit, Naval Air Station Jacksonville, FL recommended discharge under other than honorable conditions by reason of drug abuse as evidenced by a positive urinalysis (Cocaine).  Commanding Officer’s comments:  “AO3 J_ G. K_(Applicant)’s Drug Abuse is a direct violation of U.S. Navy policies and standards and are a direct detriment to good order and discipline.  Petty Officer K_(Applicant)’s conduct falls within the parameters of reference (a), and discharge is warranted.  I recommend Discharge of Petty Officer K_(Applicant) from the Naval Service under Other Than Honorable Conditions.”  [Administrative Error Note: While Commanding Officer’s recommendation states Applicant tested positive for Cocaine, the drug lab results of 20030110 reports positive test for Marijuana.]

030204:	Commander, Navy Region Southeast, Jacksonville, FL 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 20030210 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).

Whenever a Sailor is involved in misconduct due to drug abuse, on the first offense, commanders shall process the Sailor for administrative separation.  There is clear evidence in the Applicant’s service record that he used illegal drugs.  Indeed, the Applicant received nonjudicial punishment on 20030128 for violation of UCMJ Article 112a Wrongful use of controlled substance (marijuana).  Evidence of such misconduct may be used to characterize a Sailor’s discharge as under other than honorable conditions.

Regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  However, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service.  The Applicant’s service was marred by one nonjudicial punishment proceedings for violations of UCMJ Articles 112a Wrongful use of controlled substance (marijuana).  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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

While 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 the Navy, the Board 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  The Applicant submitted a drug test result from 20050509.  The Applicant is advised that his efforts need to be more encompassing to include evidence of continuing educational pursuits, verifiable employment records, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle.  At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  And so, no relief is granted on this basis.

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 post-service accomplishments or any other evidence related to the 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 Present, 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