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Docket No. ND00-00559

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

ex-ET2, USN
Docket No. ND00-00559

Applicant’s Request

The application for discharge review, received 000404, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010301.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety but did discern inequity in the characterization of the applicant’s service.  The Board’s vote was three to two that the character of the discharge shall change.  The discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  My discharge was improper because I did not commit the offense accused of as evidenced by enclosed documentation.

My discharge was improper because due process of civil rights was violated due to rules of evidence not being applied in the decision making process which eventually led to my being discharged.  Some evidence of my innocence was not even considered while supposed evidence of alleged guilt was specifically withheld as referenced by document 2: Letter of deficiency.

Documentation

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

Copy of DD Form 214
Notice of appeal of captain's mast and request for discovery of the government
Letter of deficiency to administrative separation board CO QM2 (applicant), USN
Affidavit of M_ R_ H_, Ph.D
Statements of character from all immediate supervisors spanning the period of time relevant
E-mail correspondence between Capt. W_ P_ F_, USN, and Capt W_ H_ S_, USN, pertaining to the case of (applicant)
Enlisted performance record ICO (applicant) (SSN deleted)

PART II - SUMMARY OF SERVICE

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

	Active:   USN			860523 - 910121	HON
   USN			910122 - 931226	HON
		   USN			931227 - 951225	HON
	Inactive: USNR (DEP)	860315 - 860522	COG

Period of Service Under Review:

Date of Enlistment:  951226		Date of Discharge:  990422

Length of Service (years, months, days):

	Active:    03  03  27
	Inactive:  None

Age at Entry:  31			Years Contracted:  3 (46 months extension)

Education Level:  12			AFQT:  88

Highest Rate:  QM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (4)	Behavior:  3.50 (4)		OTA:  3.18

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, GCM (3), NRSR, SSDR (5), NEM (2), NER, HSM, MUC 

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

981204:	NAVDRUGLAB, Great Lakes, IL reports applicant's urine sample received 981130, tested positive for methamphetamine.

990108:	NJP for violation of UCMJ, Article 112A: Wrongful use, possession, etc., of controlled substance on 25Nov98, to wit: methamphetamine.
	Award:  Reduction to ET2.  Appealed 990201.  Appeal denied 990225.

990126:	CAAC screening found the applicant did not meet criteria for abuse or dependency for either alcohol or methamphetamine.   

990303:	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 the misconduct warranted separation, and by a 2 to 1 vote recommended discharge under other than honorable conditions.

990326:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 990422 under other than honorable conditions for misconduct due to drug abuse (use) (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper but inequitable (C and D).

In response to the applicant’s issue, the NDRB found that the applicant’s discharge was proper.  To permit relief, an error or injustice must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  There was no rights violation and no basis for relief.  Even though the applicant believes evidence was not considered or withheld, the NDRB determined that the Administrative Discharge Board proceedings were in accordance with Navy regulations.  The NDRB requested that the Navy Drug Screening Lab, Great Lakes, IL, retest the applicant’s sample using the Gas Chromatography/Mass Spectrometry test and the results still screened positive for D-methamphetamine, a controlled substance by the Drug Enforcement Administration.

A thorough review was conducted of the applicant’s entire service record including the infraction of discipline, the extent thereof, and the seriousness of the offense, and other evidence presented to the NDRB.  The Board found that the applicant’s excellent personal conduct and performance of duty, along with consideration of the factors in paragraph 9.3 of reference (D), mitigated his misconduct.   Accordingly, the Board voted to grant relief in the form of an upgrade of characterization of service to general (under honorable conditions).  The Board determined that the applicant’s misconduct diminished the quality of his service below that meriting a fully honorable characterization of service.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (D).  The applicant must be aware that 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 the civilian life subsequent to leaving the service.  Outstanding post-service conduct, 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, may be considered by the NDRB.  The applicant is reminded that he is still eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 "afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6600/A0107/A9456