Author: CAP
Last saved by: shirley.robertson
Company: NCPB

Docket No. ND04-00541

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

ex-MMFN, USN
Docket No. ND04-00541

Applicant’s Request

The application for discharge review was received on 20040211.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a personal appearance hearing discharge review before a Traveling Panel closest to Northern California.  The Applicant listed the Yolo County Veterans Service Office as his representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing and also advised that the Board does not travel, all hearings are held in the Washington National Capital Region.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040922.  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 joined the Navy in 1999 expecting to serve four years and get out with an honorable discharge.  I had perfect evaluations for over three years and a half years and was promoted 4 times and was expecting to be promoted again.  I was offered another promotion if I had reenlisted. I was machinest-mate and had perfect safety record and had no problems or incidents that was negative for 3 – (unreadable marking) years.
I admit that I did make a mistake towards the end of my tour.  I was out partying with some friends one night and a guy told me that we could really have a better time if we took some speed.  I had never done this before in my life.  I did take the speed and regret that I did.  I was randomly tested by the Navy for drugs two days later.  I showed up positive and was given a Captain’s Mast and given an Other Than Honorable Discharge.
I was totally honest with the Captain and his staff.  I admitted what I had done and was very sorry for this inappropriate action on my part.  I have never taken any drugs in while in service prior to this incident (as evidenced by the numerous random drug tests I have taken while in the service).  I am not a drug user and live a very clean life-style. 
I feel that the other than honorable discharge is too harsh, and gives me no credit for the 3 – (unreadable marking) years that I honorably served my country.  I had a perfect record and was a credit to the Navy.  I made one stupid mistake and the entire 3 years and 10 months of service is wiped out.  I am asking that my discharge be up-graded to an honorable discharge which would be more representative of the 3 years and ten months that I honorably served my country.  When asked why the punishment was so severe, my Captain told me that he was going to make an example out of me.  I am sure that other sailors have been discharged in a less severe way for more serious things.  I ask for your support in giving me the discharge I deserve.  The discharge I have now will really make it hard to get the type of employment that I know I can get if properly discharged.  Please help me get on with my life in a positive way without the negativity of a bad discharge.”

Documentation

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

Copy of Applicant’s DD Form 214, Member-1  (2 copies) 
Copy of Certificate of Acceptance in The American Legion, (2 copies) not dtd
Letter from Applicant, dtd 03/22/04
Copy of Memorandum from Command Master Chief to Applicant, not dtd
Copy of Applicant’s Resume, 3 pages, not dtd
Copy of letter from CO, USS CORONADO to Applicant, dtd 3 Jul 2001
Copy of Evaluation Report and Counseling Record, dtd 15 Jun 02
Copy of Evaluation Report and Counseling Record, dtd   9 Jul 01
Copy of Evaluation Report and Counseling Record, dtd   7 Jul 00
Copy of Vocational Counseling Report, 5 pages, not dtd 
Copy of Sailor/Marine American Council on Education Registry Transcript, 4 pages, dtd 
	10/26/2003
Copy of  Department of the Navy Fleet Training Certificate, dtd 10 January 2002
Copy of Naval Education and Training Examination Profile, dtd MAR02
Copy of Naval Education and Training Examination Profile, dtd SEP02
Copy of Letter of Appreciation, not dtd
Copy of Distinguished Military Graduate of Engineering Systems School, dtd 24 June 
	1999
Copy of Certificate of Merit, not dtd
Copy of Certificate of Completion of Alcohol Misuse and Drug Prevention Course, dtd 3 
	August 2000
Copy of Certificate of Completion of Machinist Mate “A” School, dtd 26 JUL 1999
Copy of Certificate of Completion of Mechanical Core Course, dtd 24 June 1999
Copy of Certificate of Completion for Engineering Common Course, dtd 26 May 1999
Copy of Certificate of Completion of the Engineering Maintenance Course, dtd 22 MAR 	2001
Copy of Summary (Training) dtd 10/25/2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	980430 - 990223	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990224		Date of Discharge:  030214

Length of Service (years, months, days):

	Active:    03 11  21
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  34

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (6)	Behavior:  3.50 (6)		OTA:  3.47

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, 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:

990126:	Applicant briefed on Navy's policy of drug and alcohol abuse.

990126:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver was granted. Applicant briefed upon and certified understanding of the Navy policy concerning illegal use of drugs.

030117:	NAVDRUGLAB, San Diego, reported Applicant’s urine sample, received 030113, tested positive for methamphetamine.
.
030206:	NJP for violation of UCMJ, Article 112(a):  Wrongful use of a controlled substance.
	Award: Forfeiture of ½ months pay for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

030206:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive urinalysis for Methamphetamine use.

030206:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

030206:	Commanding Officer recommended 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 20030214 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 Applicant contends that he served the United States well and he is entitled to an upgrade.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by one nonjudicial punishment proceeding for one violation of Article 112a of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

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 following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  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 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), 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 5420.174C 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.