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

FOR OFFICIAL USE ONLY

 ex-BMSN, USN
Docket No. ND06-00964

Applicant’s Request

The application for discharge review was received on 20060607.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D. C. Metropolitan area   The Applicant did not designate a representative on the DD Form 293.  The Applicant failed to respond by the deadline date to a letter requiring the Applicant to notify the Naval Discharge Review Board of intention to be present for the requested personal appearance hearing.  Therefore, a documentary review was conducted, and the Applicant is not eligible for further review by this Board.

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 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 - ISSUES AND DOCUMENTATION

Decisional Issues

Equity – innocent ingestion
Equity – Post service

Documentation

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

Applicant’s DD Form 214
Employment Reference Letter, from T_ M_, dtd February 10, 1994

PART II - SUMMARY OF SERVICE

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

	Active:   USN	19740517 - 19770803	HON
	Active:   USN	19770804 - 19810730	HON
	Active:   USN	19810731 - 19850217	HON
	Active:   USN	19850218 - 19881215	HON

Period of Service Under Review:

Date of Enlistment:  19881216		Date of Discharge:  19920430

Length of Service (years, months, days):

	Active:    03  04  14  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  24 days

Age at Entry:  33

Years Contracted:  4 

Education Level:  12				AFQT:  NA*

Highest Rate:  BM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.13 (6)		Behavior:  3.23 (6)			OTA:  3.53

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Meritorious Unit Commendation, Sea Service Deployment Ribbon (2), First Good Conduct Award for period ending 900415, National Defense Service Medal, PSA SDIEGO, Letter of Commendation

*Not available

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Drug abuse (Use), authority: MILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events: 

881216:	Reenlisted this date for a term of 4 years.

910919:	Special Court Martial
	Charge I: violation of the UCMJ, Article 92, (2 specifications):
	Spec 1: On or about 910402, was derelict in the performance of his duties by offering to delete names from the urinalysis list.  Plea: Not Guilty.  Findings: Withdrawn. 
Spec 2: On or about 910404, was derelict in the performance of his duties by offering to delete names from the urinalysis list.  Plea: Not Guilty.  Findings: Withdrawn.
Charge II: violation of the UCMJ, Article 134, (3 specifications):
Spec 1: On or about 910401, wrongfully solicit DKSN D_ R.C_, to purchase some amount of marijuana, by requesting verbally, a “quarter bag” of marijuana. Plea: Not Guilty.  Findings: Not Guilty. 
Spec 2: On or about 910402, wrongfully solicit DKSN D_ R.C_, to purchase some amount of marijuana, by requesting verbally, a “quarter bag” of marijuana. Plea: Not Guilty.  Findings: Guilty. 
Spec 3: On or about 910403, wrongfully solicit PN3 K_ S_ to purchase some amount of methamphetamine, by providing with $20.00 lawful U.S. currency. Plea: Not Guilty.  Findings: Guilty. 
	Sentence:  Confinement for 30 days, forfeiture of $583.00 pay per month for 3 months, reduction to E-4.
	CA 911114:  The sentence approved and ordered executed.

910926:	CAC Screening:  Above named prisoner evaluated this date.  Based on self-disclosed history it has been determined that he has moderate symptoms of alcohol dependence.  He began drinking at age 14 with marked increase in tolerance at age 17.  Diagnosis: Alchoholism: episodic: possibly in partial remission.

911011:	Released from confinement and restored to full duty.

920109:	Substance Abuse /Dependency Screening: No current abuse or dependency.  

920115:	NJP for violation of UCMJ, Article 112a: Wrongfully use methamphetamine on 911216.
	Award:  Forfeiture of $521.00 pay per month for 2 months, reduction to next inferior pay grade.  No indication of appeal in the record.

920115:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Commanding Officer’s Non-judicial Punishment for wrongful use, violation of UCMJ Article 112a, sentence adjudged: forfeiture of pay of $521.00 for two months and reduction in rate to paygrade E-3; and Commission of a Serious Offense, as evidenced by special courts-martial for wrongful solicitation to purchase illegal drugs. 

920204:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

920323:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant did commit misconduct due to drug abuse as evidenced by the wrongful use of methamphetamine, that the Applicant did commit misconduct due to drug abuse as evidenced by the solicitation to purchase illegal drugs, that misconduct warranted separation, and recommended discharge under other than honorable conditions.

920402:	Officer in Charge (OIC) recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse.

920407:	Commanding Officer endorsed, concurring in OIC’s recommendation.  

920422:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse (use).

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920430 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 served approximately 18 years before being discharged from the Naval service.  He alluded to his years of hard work while in the Navy.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to ensure the hardships and sacrifices required in order to serve their country.  Despite a servicemember’s record of service, certain serious offenses 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.  Although the Applicant’s argument is not entirely clear, he appears to allege that he was set up and denies knowingly using drugs.  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 in this case.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his contentions.  Conversely, his service record contains an award of nonjudicial punishment (NJP) for illegal drug use and a court martial for solicitation to purchase illegal drugs.  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 provided a letter of reference from a prior employer in support of his request for upgrade.  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 service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not sufficient to mitigate the conduct, which precipitated the discharge.  Relief 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.  Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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 112a (use of a controlled substance), 134 (solicitation to purchase illegal drugs).  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