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Docket No. ND05-00813

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

FOR OFFICIAL USE ONLY

 ex-SA, USN
Docket No. ND05-00813

Applicant’s Request

The application for discharge review was received on 20050412.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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 20050819.  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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 “My discharge was inequitable because it I was targeted specifically by another deck seaman who apparently didn’t like me.  I was young and I was hogging around other seaman “the wrong crowd” who was smoking majuana; therefore it got into my system.  Now this other seaman was witness to them smoking and assumed we all was smoking pot, but that was not the case.  The next day he reported this to our superiors and we were immediately tested.  The test came back positive and we were discharge with an other than honorable discharge.  I was young and didn’t know any better, growing up I was never around people who smoked cigarettes yet along majuana.  At the time I didn’t understand the severity of it’s use or drawbacks.  I loved the Navy and wanted to make a career out of it, but due to someone else’s envy I was not given that chance.  Since I was discharged for the Navy I have learned the importance of selecting friends with similarly values as yourself if not the same values.  I regret ever being affiliated with that bad crowd of people and I never made the same mistake. I have earned a Bachelor’s Degree in Science(Computer Information System) and I have be married for the past four years with two beautiful children.  If it is at all possible I would love to upgrade my discharge or maybe even finish serving my country like I had planned so many years ago.  Thank you for your time and your consideration.”

Documentation

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

Bachelor of Science in Computer Information Systems, DeVry Institute of Technology, dated, March 2, 2001
Certificate of Marriage, County of Cook, State of Illinois, Office of the County Clerk, dated October 31, 2001
Academic Transcript, DeVry Institute of Technology, dated November 09, 2001  (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930309 - 940104	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  940105		Date of Discharge:  950519

Length of Service (years, months, days):

	Active:    01 04 15
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12+			AFQT:  47

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.1 (2)		Behavior:  3.2 (2)		OTA:  3.16

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 3630620.

Chronological Listing of Significant Service Events:

950420:	NJP for violation of UCMJ, Article 112a:  Wrongful use of marijuana on 95APR04.
	Award:  Forfeiture of $478.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

950421:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your Commanding Officer’s nonjudicial punishment of 20 April 1995.

950425:	Applicant advised of rights and having consulted with certified counsel, elected to waive all rights.  Applicant does not object to separation.

950430:	Medical dependency evaluation found the Applicant not to have a drug problem or an alcohol problem.
	Recommendation:  Applicant be retained in the Naval Service, no drug use, recommend retention with periodic testing.

950430:	Commanding Officer, USS RAINER, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your Commanding Officer’s Nonjudicial punishment of 20 April 1995.  Commanding Officer’s stated that the SNM was awarded NJP on 95APR20 for VUCMJ, Article 112A – Wrongful use of marijuana on 95APR04.  His wrongful use of marijuana cannot be tolerated and is detrimental to good order and discipline of this command and the Navy.  SNM possesses no potential for further naval service.  I strongly recommend that SNM be separated from the naval service with characterization of service as Other Than Honorable.

950510:	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 19950519 under other than honorable conditions for misconduct due to drug abuse (A). 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 (B and C).

The Applicant contends that although he tested positive on a probable cause urinalysis test; he never smoked marijuana. The Applicant contends that his discharge was inequitable because another seaman aboard the ship targeted him by telling the command that he witnessed the Applicant and others doing drugs.

 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.  Serious offenses such as drug abuse warrant separation from the naval service in order to maintain proper order and discipline. Separation under these conditions generally results in characterization of service under other than honorable conditions. The Applicant’s service record is marred by one nonjudicial punishment (NJP) for violation of UCMJ Article 112a, wrongful use of marijuana, thus substantiating the misconduct for which he was separated. The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. 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 contends that he was young and made some mistakes in judgment. 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 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. The NDRB reviewed the Applicant’s post-service documentation that included, a copy of his Bachelor of Science degree in Computer Information Systems from DeVry Institute of Technology, his academic transcript from DeVry Institute of Technology, and his marriage certificate. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. Examples of documentation that should be provided to the Board include verifiable employment records, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct. Relief not warranted.

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), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  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.