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Docket No. ND03-01339

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

ex-ET3, USN
Docket No. ND03-01339

Applicant’s Request

The application for discharge review was received on 20030806.  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.  Subsequent to the application, the Applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040526.  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: GENERAL (UNDER 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.  “Dear Members of the Board,
I am respectfully requesting that you consider my plee for change of discharge status to honorable.  I served ten faithful years to my countrywith a downfall of an unwise decision that caused my family and I years of suffering.  I guess you would have assumed that by me having ten years of service, I should have known better.  Nonetheless I am human and apologize for my shortcomings.  The decision of allowing-myself to partake in the smoking of marijuana is one that I am still regretting.
I am respectfully requesting that my discharge status be changed to honorable to enable me to utilize the benefits at my G.I. Bill.  I see the need for me to better my education for the future of my children and their children to come.  My story is one of neglect.  I never knew my father and lived with my Great Grandmother.  I find the civilian sector quite different from what I have experienced as a sailor since early adulthood.  I pray that you find it in your heart to grant me this blessing.

Very Respectfully Yours,

K_ R_ G_ ET2(SW)”

Additional issues submitted by Applicant’s representative (Disabled American Veterans):

2.  “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General, Under Honorable Conditions discharge to that of Honorable.

The FSM served on active service from August 12, 1989 to January 20, 2000 at which time he was discharged due to Misconduct. 

In continuance, the FSM goes onto explain that the decision to partake in marijuana usage was an unwise decision that someone with ten years of service should have known better.  He apologizes for his shortcomings and requests that his character of discharge be upgraded to Honorable to allow use of his G.I. Education Benefits so that he may provide a better life for his family and a better example for his children.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, under SECNAVIST 5420.174C.  We believe the FSM to be sincere in his request for an upgrade of his discharge and the reasons for the request.

Prior to the act of misconduct, FSM G_ (Applicant) was an excellent sailor who could be counted on to completed any task with no supervision.  This one act although serious, should not negate the ten years of excellent Honorable service.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.

Respectfully,”

Documentation

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

Certificate of completion, dated August 14, 2003
Job/character reference, dated August 25, 2003
Certificate of completion, dated January 9, 2002
Certificate of completion, dated April 26, 2002
Certificate of completion, dated September 7, 2002
Payroll donation to United Way deduction form, undated
Voter identification card
Application for the evaluation of learned experiences during military service, dated October 25, 1999
Letter from Applicant, undated

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	881201 - 890808	COG
	Active:   USN			890809 - 970102	HON

Period of Service Under Review:

Date of Enlistment:  970103		Date of Discharge:  000120

Length of Service (years, months, days):

	Active:    03  00  18
	Inactive:  None

Age at Entry:  26			Years Contracted:  6

Education Level:  12			AFQT:  53

Highest Rate:  ET2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.25 (4)	Behavior:  4.00 (4)		OTA:  4.04

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM (2), NDSM, NER, MUC, SSDR, ESWS

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

991129:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 991129, tested positive for THC.

991213:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 991123.
	Award: Forfeiture of ½ months for 2 months, extra duty for 30 days, reduction to ET3.  No indication of appeal in the record.

991214:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

991221:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

000112:	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 recommended discharge general (under honorable conditions).

000124:	Commanding Officer directed discharge general (under 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 20000120 with a general (under honorable conditions) for misconduct due to drug abuse (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.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits.  The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  Relief denied.

Issue 2.  To permit relief, an error or inequity 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.  Relief denied.

There is credible evidence in the record that the Applicant used illegal drugs.  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 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.  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 additional documentation to support any claims of post-service accomplishments or any other evidence relating to his discharge at that time.  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), Change 24, effective 20 May 99 until 26 March 2000, 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.
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