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

 ex-IT2, USN
Docket No. ND03-00818

Applicant’s Request

The application for discharge review was received on 20030409.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20040401.  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/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “The discharge was for one isolated offense.  I had a “head’s up” go forward with the mission attitude at all times.  I never would leave a problem unsolved, and getting the job done was always my prime objective.  My records of involvement with civil authorities while in the Navy was 3 isolated incidents.  Two were for driving offenses and the other was for the possession of a controlled substance which resulted in my discharge.

While in the Navy I received 5 medals and 2 ribbons.  I also received several Letters of Appreciation, Letters of Commendation and several command awards.  I served in the Southwest Asia Region, receiving the South West Asia Service Medal.

When I went to my administration board prior to my discharge I took four of my previous supervisors.  At least 10 to 15 fellow sailors would have gone had they been needed.  All of them would have said the thing thing, attesting to my military service.  The main point they would have made would be that they would be proud to have Petty Officer serving and working by their side.

Since my discharge from the Navy my family and I have moved to Illinois and everything has been going well.  I have completed all of my agreement between myself and the Virginia Beach Circuit Courts.  I am trying to start my new life in Illinois.  However, the discharge is inequitable because it is based on 1 isolated and dumb incident in 99 months of service to my country.  There has been no other adverse action.  My rank of IT2 attests to my service and skill.”

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION."  None were found.

Applicant also marked the box “THE ABOVE ISSUES SUPERSEDE ALL PREVIOUSLY SUBMITTED.”

Documentation

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

Applicant’ s DD Form 214
Character reference, dated February 28, 2003
Character reference, dated March 11, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930724 - 931115	COG
	Active:   USN 			931116 - 980614	HON

Period of Service Under Review:

Date of Enlistment:  980615		Date of Discharge:  020301

Length of Service (years, months, days):

	Active:    03  08  17
	Inactive:  None

Age at Entry:  24			Years Contracted:  5

Education Level:  12			AFQT:  52

Highest Rate:  IT2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)	Behavior:  3.00 (1)		OTA:  3.57

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, GCM (2), BER, SSDR (2), SASM, NDSM, HSM

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 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

010125:	Civil Conviction:  General District Court, Traffic Division, Virginia Beach, VA for violation of suspended operators license and speeding 31/25.
Sentence: Fine $18.00 plus court cost, jail for 6 months, license suspended for 90 days and unsupervised probation for one year.  Jail for 5 months suspended.
Applicant appealed courts decision.  Case to be heard in Circuit Court on 020315.

010608:	Civil Conviction:  General District Court, Traffic Division, Virginia Beach, VA for violation of possession of a controlled substance and driving with suspended license.
	Sentence: Bound over to grand jury, court cost, 1 year unsupervised probation, license suspended indefinitely, jail for 30 days.  Jail suspended.

010827:	Civil Conviction:  Circuit Court of the City of Virginia Beach for violation of possession of controlled substance (2 violations) (1) cocaine residue, (2) 0.659 gram cocaine.
Sentence:  Fine $916.00, probation with terms and conditions.

010921:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, misconduct due to civilian conviction and misconduct due to drug abuse.

010921:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

011128:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had not committed commission of a serious offense and found that Applicant had committed civilian conviction and drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions and recommended by a vote of 2 to 1 that the discharge be suspended for 12 months.

020122:	Commanding Officer did not concur with the Administrative Discharge Board and recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, civilian conviction and drug abuse.  Commanding Officer’s comments (verbatim): (1) During the Administrative Separation Board on 28 November 2001, IT2 B_ (Applicant) was accused of Drug Abuse, driving on a suspended license, and being convicted of driving on a suspended license (second offense).  After deliberation, the Board found Misconduct for the Civilian Conviction and the Drug Abuse.  The Board further recommended that IT2 B_ (Applicant) be separated with an Other Than Honorable discharge.  However, the Board also recommended the discharge be suspended for a period of 12 months.
	(2) I disagree with the Board’s recommendation to suspend the discharge.  The integrity of the Navy’s Drug policy should be upheld and IT2 B_ (Applicant) should be immediately separated from the Navy with an Other Than Honorable characterization of service.  Petty Officer B_ (Applicant) plead guilty and was convicted in civil court for possession of cocaine both on his person and in his vehicle.  Additionally, he has amassed two prior civil convictions for driving on a suspended license.  Conduct of this nature can not be tolerated in the Navy.  Accordingly, his security clearance has been revoked and he can no longer work in his rate.
	(3) I strongly recommend that IT2 B_ (Applicant) be separated from the Naval Service with an Other Than Honorable Discharge.

020204:	CNPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020301 under other than honorable conditions for misconduct due to commission of a serious offense (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 and equitable (C and D).

Issue 1:  The Applicant states his discharge was based on one isolated incident.”  
The civilian authorities treat some offenses with leniency because they are a first time incident on an otherwise clear record; however, to maintain proper order and discipline, the military does not view such offenses as minor infractions.  The Applicant’s service record is marred by three civil convictions, two of which involved possession of illegal drug, thus substantiating the misconduct for which he was separated.  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.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  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.  The Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

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.  However, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider. 

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 additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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