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Docket No. ND05-00899

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

FOR OFFICIAL USE ONLY

 ex-IT3, USN
Docket No. ND05-00899

Applicant’s Request

The application for discharge review was received on 20050428.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051102.  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 and reason for discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application or attached document/letter: 

“Dear Discharge Review Board,

The reason why an upgrade to an Honorable discharge is being requested is because, I, C_ S_ L_ (Applicant), feel that I was an exemplary sailor while serving in the United States Navy.  I feel that while I made a mistake and bad decision at the time, it does not warrant the type of discharge I received.  I have learned from my mistake, and in my case, it was a life changing one.  I also would like to take advantage of benefits that I put into while serving.  The main one being the Navy College Fund.

While on active duty, I received a Navy and Marine Corps Achievement medal and characterized myself to be above and beyond my peers in becoming ESWS and EAWS qualified at a young age and ranking, which is documented in the following paperwork.  I also obtained a Top Secret security clearance that I maintained throughout my military career to carry out my duties as an IT (Information Systems Technician) watch stander.  Enclosed are documents that detail the type of discharge I received, as well as the Navy College Fund that I’m trying to obtain at this time.  Under the NCF, I meet the requirements for eligibility except for the HONORABLE discharge.  When visiting www.usmilitaryabout.com under General (under honorable conditions) it states, “Characterization of service as General (under honorable conditions) is warranted when significant negative aspects of the member’s conduct or performance of duty outweigh positive aspects of the member’s military conduct”.  I feel my discharge is inequitable because the negative aspect of my conduct while serving is nowhere close to outweighing the positive, and no portion of my “performance of duty” were negative.  I have also enclosed a copy of my periodic evaluation, prior to transferring to my last duty station, in which, I feel is excellent and concurrently helped me to obtain the rank of E-5.

The Navy College Fund is something that I am trying my hardest to obtain, to get and keep my life on track.  I now know at the age of 25, that with an education life grants more paths and will greatly influence my motivation to be successful, something that I’ve always possessed.  With this, I respectfully request and hope that all paperwork and documents are greatly considered so that the change to an Honorable Discharge will be warranted.

Sincerely,
[signed]
C_ S. L_ (Applicant)”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Member 1)
Navy and Marine Corps Achievement Medal Certificate, dtd November 6, 2001
Message from DON CAF Washington, DC, dtd February 3, 1998 authorizing top secret clearance for Applicant
Applicant’s Service Record Documents (2 pages)
Navy College Fund Program Article (3 pages)
Evaluation Report and Counseling Record, dtd November 20, 2001 (2 pages)
Performance Information Memorandum, dtd February 20, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19961030 - 19970624	COG
	Active:   USN	19970625 - 20010420	HON

Period of Service Under Review:

Date of Enlistment:  20010421		Date of Discharge:  20020925

Length of Service (years, months, days):

	Active:    01  05  04
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  21

Years Contracted:  5

Education Level:  12				AFQT:  74

Highest Rate:  IT2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (3)			Behavior:  3.00 (3)		OTA:  3.62

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy and Marine Corps Achievement Medal, National Defense Service Medal, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon, Enlistment Surface Warfare Specialist, Enlisted Aviation Warfare Specialist

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events: 

010421:	Reenlisted this date for a term of 5 years.

020809:	NJP for violation of UCMJ, Article 112a:  Wrongful use of controlled substance.
	Award:  Oral reprimand, restriction and extra duty for 15 days, reduction to E-4.  No indication of appeal in the record.

020827:	Drug Dependency Evaluation.
	Assessment: No evidence of drug or ETOH dependence.
	Plan: Fit for duty or separation.  Follow up as needed.

020925:	DD Form 214: Applicant discharged General (Under Honorable Conditions) by reason of misconduct due to drug abuse.

Service Record did not contain the Administrative Discharge package.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020925 by reason of misconduct due to drug abuse (A) with a service characterization of general (under honorable conditions).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  There is credible evidence in the record that the Applicant used illegal drugs.  The Applicant was awarded nonjudicial punishment (NJP) for a violation of UCMJ Article 112a, wrongful drug use.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  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 Board presumed that the Applicant was properly notified, processed and discharged with a general (under honorable conditions) by reason of misconduct due to drug abuse.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  Relief denied.

The Applicant contends that his general (under honorable conditions) discharge is inequitable because the negative aspect of his service does not outweigh the positive.  Regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service.  The incident need not result in formal punishment to be properly used to characterize a Sailor’s service.  When the service of a member of the U.S. Navy has met the standard for acceptable conduct and performance, it is appropriate to characterize that service as honorable.  A general (under 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 nonjudicial punishment proceedings for a violation of UCMJ Article 112a, wrongful drug use.  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.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining educational benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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.  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 5420.174D 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.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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