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

ex-IC3, USN
Docket No. ND04-00470

Applicant’s Request

The application for discharge review was received on 20040120.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record  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 20050107.  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.  I request that a DD 214 be issued from my first period of service to reflect an honorable discharge.  My first enlistment was from August 7, 1997 to August 8, 2001.  At that time I re-enlisted.

2.  I request that my DD 214 from my second period of enlistment be changed to General under Honorable Conditions.  The recent discharge on August 29, 2003 does not adequately reflect the quality of my service in the Navy.  I had six productive years with the Navy and my first tour between 1997 and 2001 was of an honorable nature.  My prior evaluations were good enough to allow me the opportunity of reenlisting.  I recognize the need for zero tolerance of drug abuse in the military, however I believe the decision to discharge me under Other than Honorable conditions does not recognize that I did serve in a productive manner for six years.

Thank You!”

Documentation

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

Applicant’s DD Form 214 (2)
Letter from Veteran’s Service Office of Contra Costa County, CA

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	970429 - 970806	COG
	Active:   USN			970807 - 010926	HON

Period of Service Under Review:

Date of Enlistment:  010927		Date of Discharge:  030829

Length of Service (years, months, days):

	Active:    01  11  03
	Inactive:  None

Age at Entry:  27			Years Contracted:  3

Education Level:  12			AFQT:  61

Highest Rate:  IC2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (3)		Behavior:  2.67 (3)		OTA:  2.81

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (2d), NUC, AFEM, NATO, GCA, NDSM

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:

030711:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 030708, tested positive for cocaine.

030724:	NJP for violation of UCMJ, Article 112a: Wrongful use of drugs on or about 030703.
	Award:  Restriction and extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

030728:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

030728:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

030812:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Applicant was screened and found to be a drug abuser.  He is receiving two week outpatient treatment.

030814:	COMPHIBGRU THREE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030829 under other than 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.  The Board is recommending to the Commander, Naval Personnel Command, Millington, TN, that the Applicant’s DD Form 214 be corrected or reissued, as appropriate, to reflect his continuous honorable active period of service.

Issue 2.  There is credible evidence in the record that the Applicant used illegal drugs.  Drug abuse warranted processing for separation.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The positive aspects of the Applicant’s record do not mitigate his misconduct to a degree that would warrant relief to his characterization of service.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country for the period of service under review.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety occurred during the Applicant’s enlistment.  Additionally, 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  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), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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.

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 “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