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

FOR OFFICIAL USE ONLY

 ex-FR, USN
Docket No. ND05-01520

Applicant’s Request

The application for discharge review was received on 20050914.  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 20060621.  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:

“During my two weeks leave from Recruit Training Command I got married. When I had my bachelor party I smoked a marijuana cigarette.  Due to the immaturity of my years I did not think of how that one incident would affect my future.  When I reported to my duty station in Norfolk, VA I was ordered to take a urinalysis.  Almost ninety days will go by before the positive results of the urinalysis would catch up with me, therefore, terminating me from the United States Navy.  I had never smoked another marijuana cigarette since the bachelor party.  Throughout the next twelve years of my life I have dealt with the affects of my “Other than honorable” discharge. Now one of my goals is to join the Air National Guard.  But in order to do so I need to have my discharge upgraded to an Honorable discharge.  I know what I did in 1993 is not considered “honorable”, but I would like the second chance to serve my country and better myself.”

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)	19930122 – 19930201		COG
		Active:    None

Period of Service Under Review:

Date of Enlistment:  19930202		Date of Discharge:  19930923

Length of Service (years, months, days):

	Active:    00  07  22  (Does not excludes lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  4 days
	Confinement:		  none

Age at Entry:  19

Years Contracted:  4 

Education Level:  12				AFQT:  52

Highest Rate:  FR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*		Behavior:  NA*		OTA:  NA*

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

* Not Available

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: 

930204:	Applicant briefed on Navy's policy of drug and alcohol abuse.

930702:	Applicant to unauthorized absence at 0715 on 930702.

930706:	Applicant from unauthorized absence at 1030 on 930706 (4 days).

930806:	NJP for violation of UCMJ, Article 86: UA from 0715, 930702 until 1030, 930706.
Violation of UCMJ, Article 112a: Wrongful use of marijuana, between 22 May through 7 June 1993.
	Award:  Forfeiture of $100 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

930806:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse. [Extracted from Commanding Officer, USS MOUNT WHITNEY, recommendation for discharge dtd 930820]

930806:	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. [Extracted from Commanding Officer, USS MOUNT WHITNEY, recommendation for discharge dtd 930820]

930810:	Drug and Alcohol Abuse Report: Marijuana abuse, not dependent or eligible for treatment, recommended for separation not via VA Hospital. 

930812:	Medical officer’s evaluation following urinalysis positive for THC, found Applicant is not dependent.

930820:	Commanding Officer, USS MOUNT WHITNEY recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “FR R_ (Applicant) received CO’s NJP for violation of UCMJ Article 112a, wrongful use of marijuana.  He admitted to using marijuana while on leave enroute to this command. MBR also stated he was aware of the Navy’s Drug Policy and understood the consequences of his actions.  FR R_ (Applicant) has neither the desire nor the potential for future naval service.  I recommend he be discharged from the naval service for misconduct due to drug abuse with the characterization of service as other than honorable.”

930827:	Applicant evaluated for fitness for duty due to alcohol on breath. Applicant evaluated as unfit for duty, BAC .053.

930831:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse.

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930923 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

The service record contains a partial discharge package. The notification of recommendation for discharge and Applicant’s election of rights are missing. The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence.  There is no evidence in the record, nor has the Applicant produced any evidence, that the discharge was not proper and equitable.  The Board presumed the Applicant was notified of the intended recommendation for discharge by reason of misconduct due to drug abuse, was advised of his rights and provided the opportunity to consult with counsel, and elected or waived each right. The presumption of regularity is supported by Commanding Officer, USS MOUNT WHITNEY, recommendation for discharge dated 930820, which is in the record, and details the Applicant’s election of rights. Relief denied.

There is credible evidence in the record that the Applicant used illegal drugs.  The Applicant was punished at nonjudicial punishment for violation of UCMJ, Article 112a, wrongful use of marijuana. 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 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.  Relief denied.

The Applicant states that he has “never smoked another marijuana cigarette since the bachelor party.” 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 contends that his problems in the Navy can be attributed to his "immaturity."  While he may feel that his immaturity was the underlying cause of his misconduct, the record reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant requests an upgrade to his discharge so he can join the Air National Guard. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces. There is no requirement or law that grants recharacterization solely on the issue of enhancing the ability to reenlist 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 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 121 – drug abuse.

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.

E.  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