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

ex-OSSN, USN
Docket No. ND04-01245

Applicant’s Request

The application for discharge review was received on 20040806.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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 20050201.  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.  “My discharge was based on an isolated incident that occurred because of a bad choice during a difficult time in my life after 8+ years of service to the U.S.  Navy with no other adverse behavior to support the fact that this was more than a single incident in my long and successful career that I was enjoying with the U.S.  Navy.

I do this with great respect for my prior service and the U.S. Military after many years away from the Navy.  During the early part of 2000 I was at a difficult point in my life, I had just returned form a lengthy tour at sea and my marriage was failing.  I was a great distance away from my family and friends whom I would normally turn to. I instead turned to local friends, some of whom were in the Navy and some who were not.  I attended a party that I should have avoided and was influenced by people who were not looking out for my best interest and I used and illegal substance that was available at this particular party.  Another member of the Navy at the same party witnessed this behavior and reported it to my supervisors.  I was then asked to comply with the Navy’s no-tolerance drug rule and, because of the prior event, I failed a drug test.  I was then discharged from the Navy on March 28th, 2000 under Other Than Honorable Conditions.  I was a good serviceman moving up the Navy ladder quickly and my intentions were to retire with 20 years of service from the U.S.  Military.

My life directly following my discharge went from bad to worse and in December of 2000 I left Virginia and returned to my Family and Friends in Plattsburgh, NY.  There I was able to reestablish old relationships and create new healthy ones.  Home in Plattsburgh I have been drug free, I am engaged and have a happy and healthy way of life.  I, however, still have my Navy Career as a large part of my life and with an Other Than Honorable discharge I have missed out on many opportunities that my have been afforded me if I had an Honorable discharge.  I want to make a life for my soon to be wife and two young step-children that they can be proud of and I can provided them with as many opportunities as possible.  I am currently looking for a career, hopefully as with much of my family in the NYS Dept. of Corrections, instead of dead end jobs to improve my and my families quality of life.  A change in discharge status would increase my chances to do this.  I have provided you with a list of pervious employers who have hard evidence that I lead a drug free lifestyle through many drug tests and work requirements.  When available I have enclosed any documentation I have to support this, but I encourage you to contact these employers for a more accurate number of tests and test dates as well as the positive results of these tests.  In addition I have enclosed a list of personal references who are all good standing, high ranking members of my family and community who can attest to the statements I have provided above.

I will forever regret the behaviors on my part and it has changed the outcome of my life drastically but I would like to benefit as much as possible from the 8 years of decorated service that I did have with the Navy.  I hope you seriously consider my dedication to the service prior to my discharge and the long term aspirations that I had on becoming a high ranking, proud retired member of the U.S.  Navy.  Thank You.”

Documentation

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

Applicant’s DD Forms 214 and 215 (2)
Photo of Applicant’s family
Summary report of drug tests
Drug screening form (2)
List of references

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	901017 - 901116	COG
	Active:   USN			901117 - 940325	HON
		  USN			950202 – 981203	HON

Period of Service Under Review:

Date of Enlistment:  981204		Date of Discharge:  000328

Length of Service (years, months, days):

	Active:    01  03  25
	Inactive:  None

Age at Entry:  26			Years Contracted:  6

Education Level:  12			AFQT:  53

Highest Rate:  OSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (2)		Behavior:  1.50 (2)		OTA:  3.43

Military Decorations:  None

Unit/Campaign/Service Awards:  NATO, AFSM, SSDR (3), AFEM, NER (2), NUC, SASM, 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:

990514: 	Counseled for failure of the PRT on 990415.

000302:	NJP for violation of UCMJ, Article 112a: Wrongful use of cocaine.
	Award:  Forfeiture of $747.95 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

000310:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by NJP on 000302.

000310:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

000315:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000318:	Commander, Cruiser Destroyer Group Two 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 20000328 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’s nonjudicial punishment for cocaine use provides credible evidence in the record that the Applicant used illegal drugs.  Despite the positive aspects of the Applicant’s record, even one instance of drug abuse warranted processing for separation.  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’s discharge characterization accurately reflects his service to his country.  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, to enhance employment opportunities, or for 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, and certification of non-involvement with civil authorities, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.  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), Change 27, effective 27 March 2000 - 11 Feb 2001, 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