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Docket No. ND04-01040

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

ex-GSM3, USN
Docket No. ND04-01040

Applicant’s Request

The application for discharge review was received on 20040615.  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 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 20041103.  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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

Issue 1.  “My discharge is improper because it is based on one isolated incident in 52 months of service. 
My service record is full of scholastic achievements and commendations from the Commanding Officer of the USS FIFE (DD 991) from which I served proudly during operation Desert Shied/Desert Storm.
I have had exemplary post service conduct & have worked for the same company for the past 10 years.
I have raised 3 lovely children & married a wonderful women whom I plan to spend the rest of my life.
I am making this request for an upgrade of my discharge in an attempt to clear my name and be proud once again for my role in service to my country.
I realize what I did 12 plus year ago to get discharge was wrong.  That was a chapter in my life that was long since been written.  But I assured you that I am know longer that person.
I am a person of great pride & responsibility of which I owe it all to the United States Navy.”

Documentation

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

Letter of Recommendation from Rev. J___ D. W___
Police Record Check
Applicant’s DD Form 214
Letter of Appreciation, dated July 14, 1990
Letters of Commendation (2)
Copies of Enlisted Performance Evaluation Report (2)
Copies of Certificate of Training, dated January 10, 1992 (2)
Copy of Honor Graduate Certificate from SSC NTC, Great Lakes, IL
Copy of Certificate of Training (Gas Turbine Mechanical Maintenance “C” School)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	880125 - 880208	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  880209		Date of Discharge:  920601

Length of Service (years, months, days):

	Active:    04  03  24
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  81

Highest Rate:  GSM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.84 (5)	Behavior:  3.40 (5)		OTA:  3.52

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, MUC, NDSM, SSDR(2), KLM, SASM(2)

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

890503:	NJP for violation of UCMJ, Article 116: Breach of peace on or about 0120, 890411.
	Award:  Extra duty for 14 days.  No indication of appeal in the record.

890504:	Retention Warning:  Advised of deficiency (Disciplinary Infraction and Pattern of Misconduct, Alcohol Abuse), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900919:	NJP for violation of UCMJ, Article 91: Contempt towards a Petty Officer, violation of UCMJ, Article 95: Resistance of arrest, violation of UCMJ, Article 134: Disorderly conduct.
Award:  Forfeiture of $500.00 pay per month for 2 months, restriction to the ship for 30 days, reduction to E-3 (suspended for 6 months).  No indication of appeal in the record.

901025:	Applicant diagnosed psychologically dependent on Alcohol and responsible for his actions.

920409:	NAVDRUGLAB [Norfolk, VA], reported Applicant’s urine sample, received 920313, tested positive for [THC].

920415:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
Award:  Forfeiture of $645.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

920417:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the results of a random urinalysis screening conducted on 920313.

920421:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

920429:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments: [paragraph 12] 
Due to operational schedule of USS KIDD (DDG-993), SNM cannot be evaluated for drug dependency until the week of 4 May 1992.  Once the evaluation had been conducted, the results will be faxed to NMPC. 

920514:	Medical evaluation for drug abuse found the Applicant to be not physiologically or psychologically drug dependent.

920525:	BUPERS 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 19920601 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 states his discharge was based on one isolated incident in “18 months” and that his “service record is full of scholastic achievements and commendations.”  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

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 three nonjudicial punishment proceedings for five violations of Articles 91, 95, 116, 112a and 134 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 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.  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  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 documentation to support any claims of post-service accomplishments or any other evidence related 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.  Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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.