Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. ND05-00327

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

 ex-DN, USN
Docket No. ND05-00327

Applicant’s Request

The application for discharge review was received on 20041214.  The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requested a documentary record review.  The Applicant did not list a representative on his 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.  “With all due respect The Board:

I first want to start with thanking you for listening to my request and giving me another venue to re-establish my life with the possibility of receiving a discharge from Other than honorable to General/Under Honorable conditions.

During my enlistment in the United States Navy l999Novl7-2002May25, I joined with a very open mind and great plans to become the best at what I did as a member of the armed forces.  From the very beginning boot camp to Okinawa Japan, I worked very hard.  I studied and trained with all I had.  My hard work and dedication paid off from the beginning.

My evals began with 4.0's and continued throughout my career leading to Early Promotes 4.0 and Sailor of the quarters 3 separate quarters.  I picked up my 3rd class crow the first time eligible and became Sailor of the year 2001 USNDC Okinawa Japan.  I continued to work my hardest picking up full loads of education full time.  I started my college career in the navy with Central Texas College receiving over 43 college credits and much gained knowledge in the field of Criminal Justice.

Unfortunately, I ended up with a decision that would affect the rest of career in the Navy along with the rest of my life.  I was 20 years old at this time when I decided to go with the influence of friends and the decision making of a child.  I made a choice to experiment with a mushroom that was sold on the streets of Okinawa JP.  I knew nothing of this mushroom or what the consequences were of consuming.  I ended up in the E.R.  delusional and out of touch with my self.
During investigations of this event, a controlled substance was found in my barracks room.  The pain medication (Percocet) in pill form was found.

At this time, I was realizing that I had made the biggest mistake of my life and the haunting thought of failure played over and over in my mind.  The separation process began and I was discharged from the United States military very rapidly with the offense (UCMJ Article ll2a-wrongful use, possession, ect.  of controlled substance.) and left with a permanent title to this civilian world as discharged man with Other than Honorable conditions.

As I look back 2 years and 7 months to this date, I see the worst nightmare I could have imagined.  I was very ignorant, and regret the decision making; and immaturity to have let this happen to myself.  Since this incident I have regained strength and pushed my hardest out here in the civilian world.  I am currently living in San Jose Ca, working 2 jobs; one as a surgical assistant and second as a part time employee at Red lobster.  I have brought into this life a beautiful young son I_ R_ (Applicant's son) 1 year 3 months old and a fiancé and wife to be, providing to the best of my ability.

All I life for now is my son and wife to be providing all that they will ever need.  I have seriously wanted to join the San Jose Police department but the thought of joining the force with Other than honorable conditions is very slim.  The police department looks at this discharge very distastefully and with closed doors.

The reconsideration of my discharge from (other than honorable) to (General/Under Honorable Conditions) from the board is requested from the bottom of my heart along with my families.  I would like to inform you that this decision will change my life forever.  Allowing my dreams to come true, of becoming a Respected Police officer, planning a future for my family; and a light to look forward to.  Thank you for your time and consideration to this request.

Respectfully,
(Signed)
R_ L_ (Applicant)”

Documentation

The Applicant did not submit any additional documentation for the Board to consider during the deliberation of his case.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	991027 - 991116	COG
	Active:   			None			HON

Period of Service Under Review:

Date of Enlistment:  991117		Date of Discharge:  020917

Length of Service (years, months, days):

	Active:    02  10  01
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  35

Highest Rate:  DT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.33 (3)		Behavior:  3.00 (3)		OTA:  3.56

Military Decorations:  None

Unit/Campaign/Service Awards:  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:

020320:	United States Marine Corps Military Police Investigation.  Applicant admitted to attending doctor that he had taken “shrooms” which he received from a friend who the Applicant refused to name.

020425:	NJP for violation of UCMJ, Article 112A: Wrongful use, possession, etc of controlled substance.
	Award:  Forfeiture of $500 per month for 2 months, extra duty for 30 days, reduction to E-3, liberty risk alpha for 60 days.  Forfeiture of $500 for 1 month suspended.  No indication of appeal in the record.

020502:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020502:	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 and submit a statement.

Undated:	Applicant’s statement to separation authority.

020513:	Substance Abuse Counselor evaluation does not reveal any pattern of drug abuse or dependence.

020621:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments (verbatim): “Up until the time of his NJP DN R_ (Applicant) had been an exemplary performer, even being selected as the Command Junior sailor or the Year months before his offense.  While every testimony at his NJP spoke of his unlimited potential, the fact that a Petty Officer with experience working in oral surgery felt it was “OK” to receive, retain and use a controlled prescription medication leads me to recommend his separation from Naval Service.” 

020805:	CNPC directed the Applicant's 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 20020917 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:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While he may feel ignorance, immaturity and youth were contributing factors to his misconduct, they do not mitigate the Applicant’s disobedience of the orders and directives regulating good order and discipline in the naval service.  Sailors guilty of illegal drug abuse normally receive a discharge characterization of under other than honorable conditions.  The Applicant’s service record is marred by the awarding of nonjudicial punishment (NJP) for illegal drug use, substantiating his misconduct.  It must be noted most Sailors serve honorably; thereby, earning their honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure the undeserving receive no higher a service characterization than is due.  An upgrade to general (under honorable conditions) would be inappropriate.  Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board discovered no impropriety or inequity and considers his discharge proper and equitable.  This issue does not serve to provide a foundation upon which the Board can grant relief.  

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 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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, and credible evidence of a substance-free lifestyle are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  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), Change 33, effective 16 Jul 2001 until 21 Aug 2002, 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

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.