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

FOR OFFICIAL USE ONLY

 ex-CTRSA, USN
Docket No. ND05-01366

Applicant’s Request

The application for discharge review was received on 20050818.  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 20060413.  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 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:

“To whom it may concern:

The following is my case regarding my upgrade of discharge.

First of all, I displayed honesty by admitting my guilt prior to my urinalysis.  My thinking at the time was to be completely upfront about the situation.  It was a one time occurrence, and I simply wished to resolve the situation, pay my dues, and put the entire situation behind me.  My thinking was that honesty would give me the greatest opportunity to continue my career in the Navy.  My urinalysis came back negative, which further proves that this was an isolated incident.

I feel that peer pressure played a substantial role in my making the mistakes I did.  At the time I was young and impressionable.  That aspect combined with the fact that I was living off-base and surrounded by the wrong people, created an environment that led to my mistake.

Throughout my three years in the Navy, I always tried to display the core values of the Navy.  This is shown by the Letter of Commendation that I received, as well as my advancement to Petty Officer Third Class on my first time up backed up with a “must promote” on my advancement eval.

Prior to discharge, I was appointed legal counsel out of Norfolk, VA.  Upon visiting with said counsel, I was strongly discouraged from pursuing further legal assistance for his impression that I did not have a case.  In addition to this, I was never offered the option of drug rehabilitation or counseling, which now is commonly offered to people in similar situations.  Had this opportunity been presented, I would have gladly accepted and been able to further pursue my goals in the military.
In conclusion, I realize what I did was a mistake, and I have regretted it every day since.  Unfortunately I cannot go back undo my actions, and I wish I would have been given the opportunity to prove my commitment to the Navy.  I now wish to put this entire situation behind me, and move on with my life.  It is my wish for you to grant me an upgrade to honorable discharge, or whatever you see fit.

Very respectfully,”

Documentation

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

Character Reference ltr from S_ K_, District Manager, Massanutten resort sales, undtd
Character Reference ltr from B_ J_, undtd
Cover letter from T_ J. K_, Vets Representative

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19991103 - 20000319	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000320		Date of Discharge:  20030307

Length of Service (years, months, days):

	Active:    02  11  18
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  80

Highest Rate:  CTRSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.67 (3)			Behavior:  2.67 (3)		OTA:  3.39

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events: 

021023:	Summary Court-Martial.
	Charge:  violation of the UCMJ, Article 112a:
	Specification 1: In Harrisonburg, VA, on or about 15 July 2002. did wrongfully possess an unknown quantity of marijuana.  Plea:  Not Guilty.  Findings:  Dismissed as multiplicious.
	Specification 2: In Harrisonburg, VA, on or about 15 July 2002, did wrongfully use marijuana.  Plea: Guilty.  Finding:  Guilty.
	Sentence: Forfeiture of $817.00, restriction for 60 days, reduction to E-2.
	CA action 021024:  Sentence approved and ordered executed without modification.
	
021218:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct - drug abuse as evidenced by violation of UCMJ Art 112a, Summary Court-Martial held on 23 October 2003.

030128:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

030128:	Commanding Officer, Naval Security Group Activity, Sugar Grove, WV recommended discharge under other than honorable conditions by reason of misconduct - drug abuse as evidenced by violation of UCMJ Article 112a.  Commanding Officer’s comments:  “Recommend CTRSA G_(Applicant) receive an Other-Than-Honorable discharge from the U.S. Navy.  His unsatisfactory personal behavior brought discredit to the Naval Service and was contrary to the Navy’s core values.

030205:	Commander, Navy Region, Mid-Atlantic 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 20030307 by reason of misconduct due to drug abuse (A and B) with a service characterization of under other than honorable conditions.  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).  

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.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug use.  The Applicant’s allegations, that he was “never offered the option of drug rehabilitation or counseling,” do not refute the presumption of regularity in this case.  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.

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  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 a Summary Court-Martial for violation of Article 112a 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.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV).  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The Applicant provided two letters of recommendation from employers as documentation of his post-service.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, 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.  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.  Therefore, no relief will be granted.  

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 additional evidence related to this 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.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a, wrongful use of controlled substances.

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