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

FOR OFFICIAL USE ONLY

 ex-MM3(SW/AW), USN
Docket No. ND06-00594

Applicant’s Request

The application for discharge review was received on 20060328.  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 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.  Subsequent to the application the Applicant converted to a documentary discharge review.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070614.  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

Decisional Issues

Propriety – Command Misconduct 
Equity – In service conduct
Equity – Urinalysis Error/Did not use drugs
Equity – Post service
Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Member 4)
Statement from Applicant, dated January 17, 2006 (2 pages)
Character Reference ltr from D. B. R_, CWO3, USN, dated January 20, 2005
Character Reference ltr from L_ D. M_, Esquire, dated February 8, 2006
Character Reference ltr from N_ R. M_, Achievement Center Inc, dated February 22, 2006
Character Reference ltr from D_ H_, Revenue Enforcement Agent, Pennsylvania Department of Revenue, dated February 21, 2006
Statement in Support of VA Claim, dated June 5, 2006
Applicant’s letter to SECNAVCORB, dated August 15, 2006
Report of Positive Urinalysis Sample Tests, dated October 21, 2004
Urinalysis Register
Applicant’s resume (2 pages)
Record of Urinalysis submitted to Erie Metro Transit Authority, dated May 15, 2007
Naval Legal Service Office, MIDLANT, PRD Intake Sheet

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19980128 - 19980208	COG
	Active:   USN	19980209 - 20020503	HON

Period of Service Under Review:

Date of Enlistment:  20020504		Date of Discharge:  20050125

Length of Service (years, months, days):

	Active:    02  08  22
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  38

Years Contracted:  4

Education Level:  12				AFQT:  31

Highest Rate:  MM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (4)		Behavior:  3.0 (4)		OTA:  3.54

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy & Marine Corps Achievement Medal, Navy “E” Ribbon(2), Meritorious Unit Commendation, Good Conduct Medal, National Defense Service Medal, Sea Service Deployment Ribbon(2)

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: 

020504:	Reenlisted this date for a term of 4 years

041021:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 041019, tested positive for THC.

041026:	Preliminary investigation report into allegation of Applicant’s misconduct (Violations of Articles 112a, 83, and 107).  Recommendation Special Court Martial.

041108:	NJP for violation of UCMJ, Article 112a: Wrongful use, possession, etc, of controlled substances.
	Award:  Forfeiture of $945.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

050107:	Commanding Officer, Center for Naval Engineering, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “Through misconduct due to drug abuse, MM3 M_(Applicant) has demonstrated an inability to adapt to the Navy’s environment or live up to our standards of performance and personal conduct.  I have determined that MM3 M_ has no potential for further naval service and strongly recommend that he be separated from active duty with a characterization of service as Other Than Honorable.”

050111:	Commander, Naval Personnel Development Command directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

050125:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse, authority:  MILPERSMAN 1910-146.

Service Record contains a partial Administrative Discharge package.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050125 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).

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  Specifically, Applicant alleged that he was wronged by his command in that he asked for a second urinalysis test and his request was denied.  He also feels that he was mistreated in that his command did not consider his previous stellar service in assessing the credibility of his protests that the positive urinalysis was an error.  The record, however, contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or anyone else for that matter in the discharge process.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The Applicant’s statements alone do not overcome the government’s presumption of regularity.  There is no evidence in the record, nor has the Applicant produced evidence sufficient to overcome the presumption of regularity.  As such, this Board presumed that Applicant’s discharge was regular in all respects.  Relief denied.  

The Applicant requests an upgrade based upon the quality of his service.  Despite a servicemember’s record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.  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’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.  Relief denied.

The Applicant argues that his discharge was inequitable because he did not use drugs, and he believes the positive urinalysis was an error.  The Applicant bears the burden of providing evidence sufficient to overcome the presumption of regularity.  The Applicant has failed to overcome that presumption.  Relief denied.

The Applicant provided evidence of post service accomplishments in support of his request for upgrade.  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.  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 post-service documentation sufficient to mitigate 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 (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