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

FOR OFFICIAL USE ONLY

 ex-EOCN, USN
Docket No. ND06-00570

Applicant’s Request

The application for discharge review was received on 20060222.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to uncharacterized.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.  On 20070418 the Applicant converted to a documentary record discharge review and obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070426.  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 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

Decisional Issues

Propriety:  Did not use illegal drugs.

Propriety:  Did not receive competent counsel during administrative separation proceedings.

Equity:	  Post-Service conduct.	

Documentation

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

Applicant’s DD Form 214 (Member 4) (current discharge)
Applicant’s DD Form 214 (Member 4) (previous discharge)
Certificate of Completion from Naval Submarine School for completion of Basic Enlisted Submarine Course, dated August 12, 1998
Certificate of Completion from Naval Submarine School for completion of  Strategic Weapons, dated December 18, 1998
Certificate of Completion from Department of the Navy for completion of Course of Instruction in Trident I Missile Technician Replacement, dated June 16, 1999
Performance Information Memorandum, dated March 8, 2000
Performance Information Memorandum, dated June 29, 2000
Certificate of Training from Interservice Training Review Organization for completion of Equipment Operator “A” School, dated June 30, 2000
Evaluation Report and Counseling Record for period July 10, 2000 to February 1, 2001
Certificate of Completion of Seabee Combat Warfare Specialist, dated April 25, 2002
Letter of Appreciation from Commanding Officer, Naval Construction Force Support, dated June 23, 2003
Korean War 50th Anniversary certificate for volunteering during the Commemoration of the anniversary, undated
Statement from Applicant, undated
Junior Leader Training Course certificate, dated February 12, 1994
Junior Leader Training Staff certificate, dated February 11, 1995
Junior Leader Training Staff certificate, dated February 24, 1996
Junior Assistance Scoutmaster certificate, dated June 28, 1995
First Class Scout certificate, undated
Eagle Scout Oath certificate, dated August 18, 1996
Eagle Scout Challenge paper
Eagle Scout Rank Application, dated December 27, 1995 (2 pages)
Letter from Boys Scouts of America, dated January 22, 1996
Eagle Scout Court of Honor program, dated August 18, 1996 (2 pages)
Card from President B_ C_ and H_ R_ C_
Card from President G_ B_ and B_ B_
Two photographs
Letter from C. G. M_, Lieutenant General, U.S. Army, dated August 16, 1996
Letter from United States Senate, J _ G_, United States Senator, dated April 21, 1996
Letter from M_ L_, Governor, State of Washington, dated August 21, 1996
Letter from R_ P_, dated August 30, 1996
Letter from Vice President, A_ G_, dated September 3, 1996
Letter from C_ A. H_, Lieutenant, U.S. Coast Guard, dated September 3, 1996
Letter from H_ H_, Director for Public Communication, Office of the Assistant Secretary of Defense, dated September 4, 1996
Certificate of Achievement, dated September 3, 1996
Letter from F_ P_, Secretary of Transportation, dated September 10, 1996
Letter from J_ D_, Administrative Assistant, Supreme Court of the United States, dated September 11, 1996
Letter from S_ S_, Dream Works, dated September 17, 1996
Letter from S_ G_, United States Senator, dated September 19, 1996
Letter from J_ C_, Director, Community Relations, Seattle Mariners, dated October 2, 1996
Letter from Seattle Mariners, undated
Trading Card of A_ D_, Seattle Mariner issued by Mother’s Cookies
KIRO 710 News Radio bumper sticker
Supreme Court of the Unites States of America certificate for completing the requirements for Scouting’s rank of Eagle Scout, dated October 3, 1996
Letter from D_ J. M_, Commander, Department of the Air Force, dated October 25, 1996
Certificate of acceptance for enlistment in the United States Navy, dated November 23, 1996
Certificate of completion of Soil Stabilization II, dated April 30, 2001 to May 10, 2001
Certificate of completion of Field Communications Course, dated May 25, 2001
Certificate of completion of Water Well Drilling, dated July 3, 2001
Certificate of completion of Petty Officer Indoctrination Course, dated July 18, 2001
Letter from Commanding Officer, for authority to assume the title and wear the uniform of a Third Class Petty Officer, dated July 18, 2001
Certificate of completion of Asphalt Paving Operations II, dated July 3, 2002
Certificate of completion of License Examiner, dated July 16 2002
Certificate of completion of Planning, Estimating and Scheduling, dated October 14, 2003 to October 31, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19961123 - 19971023	ELS
		USNR (DEP)	19971025 - 19980415	COG
	Active:   USN	19980416 - 19990701	HON
	Inactive:	USNR (DEP)	20000119 - 20000207	COG
	
Period of Service Under Review:

Date of Enlistment:  20000208		Date of Discharge:  20040413

Length of Service (years, months, days):

	Active:    04  02  06
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  22

Years Contracted:  2 (36-month extension)

Education Level:  12				AFQT:  68/75

Highest Rate:  EO3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.2 (5)			Behavior:  2.4 (5)		OTA:  2.79

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, w/2 Bronze Stars, Navy Rifle Marksmanship Ribbon, Presidential Unit Citation, Global War on Terrorism Expeditionary Medal, Navy Unit Commendation Medal, Navy “E” Ribbon, Navy Good Conduct 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: 

000208:	Applicant re-entered active duty on 000208.

031216:	NJP for violation of UCMJ, Article 112a:  Wrongful use, possession of a controlled substance.
	Award:  Forfeiture of $764.00 per month for 2 months, restriction for 30 days, reduction to E-3.  No indication of appeal in the record.

UNKNOWN:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.  [Extracted from Commanding Officer’s letter dated 040227.]

UNKNOWN:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed offense number (1), that such misconduct warranted separation, and recommended discharge other than honorable.  [Extracted from Commanding Officer’s letter dated 040227.]

040227:	Commanding Officer, Naval Mobile Construction Battalion ONE THIRTY THREE, recommended discharge under other than honorable conditions by reason of misconduct - drug abuse.

040413:	Commander, FIRST Naval Construction Division, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to 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 20040413 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 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 Applicant claims that he did not use illegal drugs.  There is credible evidence in the record that the Applicant used illegal drugs.  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 claims that he did not receive competent representation during the separation process and that his counsel advised him to “alter the facts.”  In the absence of substantial credible evidence to the contrary, the Board presumes regularity in the conduct of governmental affairs, to include the presumption that all parties to the separation process, including a respondent’s counsel, act competently and in good faith.  The In the absence of a complete administrative discharge package in the service record, the NDRB vote was based on presumption of regularity in this case.  Applicant’s uncorroborated and unsubstantiated claims of counsel incompetence and misconduct are not sufficient to overcome that presumption.  Relief denied.

The Applicant is claiming good Post-Service conduct as one of his claims for an upgrade to his characterization of service.  The following is provided for the edification of the Applicant.  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 sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  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 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.  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.  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 112a, Wrongful use of a controlled substance.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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