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

FOR OFFICIAL USE ONLY

 ex-HM3, USN
Docket No. ND06-00885

Applicant’s Request

The application for discharge review was received on 20060622.  The Applicant requested the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant designated a civilian counsel as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. Metropolitan area on 20070801.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB determined there was inequity in the characterization of the Applicant’s service even though the discharge was determined to have been otherwise equitable and proper at time of issuance.  The Board’s vote was unanimous that the Narrative reason for discharge shall remain the same.  The Board’s vote was unanimous that the characterization of discharge shall change to:  GENERAL (UNDER HONORABLE CONDITIONS).  The Applicant’s discharge is changed to GENERAL (UNDER HONORABLE CONDITIONS)/ by reason of MISCONDUCT DUE TO DRUG ABUSE, authority: MILPERSMAN , Separation Code “GKK.”

PART I - ISSUES AND DOCUMENTATION

Issues, as stated

1. Consideration of Post-Service factors to support re-characterization of discharge.  The Applicant’s Post-Service conduct and employment has been nothing short of outstanding.  He has and is living a life society should be proud of and supportive.

2.  Board member HMC R_ states the recorder informed the board that the Applicant’s suitability to remain in the military service based solely on the substance abuse offense.  I believe this is a mischaracterization of the law if that is what they were told.

3.  The Applicant’s NAM citation was not presented to the Administrative Separation Board.

4.  Upon review the disparate treatment of the Applicant and Petty Officer H_ supports a discharge upgrade.  

Documentation

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

Applicant’s DD Form 214
Applicant’s DD Form 215
HM2 H_’s DD Form 214
Honorable discharge certificate for the Applicant, dtd 28 December 2000.
Recommendation Letter from C_ L. H_, Jacksonville Sheriff’s Office, dtd 2 June 2006
Recommendation Letter from R_ L. K_, Chief Petty Officer, USN (Retired), dtd 1 June 2006
Character reference from J_ T. R_, Police Officer, Jacksonville Sheriff’s Office, dtd 1 June 2006
Recommendation Letter from A. D. F_ ,Correctional Probation Senior Officer, dtd 30 May 2006
Recommendation Letter from R_ A. C_, Jacksonville Sheriff’s Office, dtd 22 May 2006
Character reference from T_ P. W_, Master Chief Petty Officer, USN, Retired, dtd 20 May 2006
Recommendation Letter from P_ A_, Assistant General Manager, General Growth Properties, dtd 19 May 2006
Recommendation Letter from J_ A. T_, undated
Recommendation Letter from Officer D. J_, undated
Navy and Marine Corps Achievement Medal, dated 12 May 1999
Enlisted Evaluation Report, dated 13 June 2000
Enlisted Evaluation Report, dated 15 May 1999
Enlisted Evaluation Report, dated 13 July 1998
Enlisted Evaluation Report, dated 28 December 1997
Enlisted Evaluation Report, dated 10 July 1997
Enlisted Evaluation Report, dated 14 March 1997
Enlisted Evaluation Report, dated 08 October 1996
Non-judicial punishment disposition, dated 01 March 2001
Report of Administrative Discharge Board, dated 08 June 2001
Letter from HMC T_ O. R_, dtd 13 June 2001
Letter from CDR M_ W. T_, dtd 12 June 2001
Applicant’s Statement of Issues
Criminal history background check, Office of Sheriff, City of Jacksonville, dtd 27 July 2007
Warranty Deed, State of Florida, County of Duval, dated 17 June 2005 (2 pages)
Recommendation Letter from F_ L. J_, dtd 28 July 2007
Letter from G_ G_, Associate General Manager, Regency Square Mall, dtd 27 July 2007
Pre-Employment Screening, Valor Security Services, dtd 20 Feb 2007
Pre-Employment Screening, Valor Security Services, dtd 30 Aug 2006
Pre-Employment Screening, Valor Security Services, dtd 21 Jan 2006
Pre-Employment Screening, Valor Security Services, dtd 23 July 2005
Pre-Employment Screening, Valor Security Services, dtd 02 February 2005
Pre-Employment Screening, Valor Security Services, dtd 24 January 2004
Pre-Employment Screening, Valor Security Services, dtd 26 July 2003
Pre-Employment Screening, Valor Security Services, dtd 25 January 2003
Pre-Employment Screening, Valor Security Services, dtd 24 July 2002
Pre-Employment Screening, Valor Security Services, dtd 01 February 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19951122 - 19960402	COG
	Active:   USN	19960403 - 20001228	HON

Period of Service Under Review:

Date of Enlistment:  20001229		Date of Discharge:  20010803

Length of Service (years, months, days):

	Active:    00  07  06
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  24

Years Contracted:  2

Education Level:  12				AFQT:  35/41

Highest Rate:  HM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (1)		Behavior:  1.0 (1)	OTA:  3.33

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy Achievement Medal/Navy Good Conduct Medal/Joint Meritorious Unit Commendation/Fleet Marine Force Ribbon/Navy Unit Commendation/Armed Forces Expeditionary Medal/Humanitarian Service Medal/Sea Service Deployment Ribbon(Second Award)/Coast Guard Meritorious Unit Commendation/Navy Volunteer Service Medal/Navy Rifle Medal/Navy Pistol 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: 

010220:	Applicant detained by United States Custom Service at San Ysidro point of entry for possession of anabolic steroids and turned over to shore patrol.

010221:	Consent to urinalysis.  [Extracted from the documents provided by Applicant for his document review.]

010221:	Urinalysis results action Negative.  [Extracted from the documents provided by Applicant for his document review.]

010305:	NJP for violation of UCMJ, Article 112a:  Did, at the San Ysidro Point of Entry, on or about 1610 on 010220, wrongfully possess 2 boxes of 1 milliliter vials of decadurabolin each (anabolic steroid).
	Award:  Forfeiture of $750.00 per month for 1 month, reduction to E-4.  No indication of appeal in the record.

010308:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all incidents of drug abuse or possession in your current enlistment.

010319:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

010522:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and commission of a serious offense.

010607:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that such misconduct warranted separation, and recommended discharge under other than honorable conditions by a vote of 2 to 1.  The board recommended suspension of the discharge for 12 months by a vote of 2 to 1.

010724:	CNPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

041008:	NDRB documentary record review Docket Number ND04-00528 conducted.  Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010803 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, testimony, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D) at the time of issuance.  However, after consideration of the Applicant's substantial post service accomplishments and good citizenship, the Board determined that partial relief was warranted.  The Board voted unanimously that the discharge characterization shall change to general (under honorable conditions) and voted unanimously that the reason for discharge remain the same.  The Board determined that in view of the seriousness of the Applicant's misconduct a change in the discharge characterization to fully honorable is not warranted.  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant argues that his discharge should be upgraded in part based on his post-service conduct.  After review of the Applicant’s service record and other evidence presented to the NDRB, in conjunction with consideration of the factors listed in paragraph 503c (1), the Board determined that relief is warranted under equitable grounds even though the discharge was determined to have been otherwise equitable and proper at time of issuance.  His in service performance when combined with post-service actions demonstrate that his illegal drug possession was most likely an isolated event not reflective of his overall character.  However, the Board found that the Applicant’s post-service conduct does not sufficiently mitigate his misconduct while on active duty to warrant full relief in the form of an honorable discharge.  Therefore, partial relief is granted.  The Board voted to upgrade the Applicant’s characterization of discharge to General (under honorable conditions) as partial relief.

The Applicant argues that his Administrative Discharge Board was improper and inequitable because the members were improperly instructed regarding the law as it related to the members’ options regarding retention of the Applicant.  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 only evidence the Applicant provides to support this contention is a statement from one of the members that can be interpreted in several ways including the one argued by the Applicant.  There is no other evidence in the record to support the Applicant’s contention.  This vague statement standing alone does not overcome the government’s presumption of regularity in this case.  Relief denied.

The Applicant argues that his discharge was inequitable because he did not present his Navy and Marine Corps Achievement Medal Citation to the Administrative Discharge Board.  The Board finds no merit in this argument.  At his Administrative Discharge Board the Applicant was properly represented by counsel and was provided with an opportunity to present documents and witnesses.  The decision to provide a list of awards and commendations rather than a copy of his actual citation was within the discretion of the Applicant and his counsel.  The Applicant acknowledged his understanding of the rights afforded to him as part of the administrative discharge process.  The Board finds that the Applicant was correctly processed according to pertinent regulations and can discern no impropriety or inequity in the Applicant’s Administrative Discharge Board.  Relief on this basis is not warranted.

The Applicant argues that his discharge was inequitable because of the disparity in the Navy’s handling of his case and that of the other Sailor involved in the incident.  The other Sailor involved was attached to different command that the Applicant.  For the edification of the Applicant, the decision to process a service member and the subsequent administrative separation proceeding are independent of separation proceedings of other service members even at the same command.  Each discharge board stands alone and makes its decision on a case by case basis considering the equities of the individual case.  Propriety or equity of each proceeding stands alone.  The decision of an Administrative Discharge Board in one case would have no bearing on a subsequent case.  The NDRB determined that the Applicant was correctly processed according to pertinent regulations and could discern no impropriety or inequity in the Applicant’s discharge or inequity in the differing outcome of another command’s processing of the other sailor involved.  On 010319, the Applicant acknowledged his understanding of the rights afforded to him as part of the administrative discharge process, electing to appear before an Administrative Discharge Board, and was properly represented by counsel at his board.  After reviewing the Applicant's entire service record, the Board found that the characterization of the Applicant's discharge as other than honorable was equitable and consistent with the characterization of discharges given others in similar circumstances.  Relief on this basis is denied.

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 Jul 2001 until 21 Aug 2002, 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 (possession 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