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

FOR OFFICIAL USE ONLY

 ex-AOAA, USN
Docket No. ND06-00043

Applicant’s Request

The application for discharge review was received on 20051004.  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 20060721.  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 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: 

“Respectfully requesting an upgrade to honorable because I have always dreamed of being a police officer.  In the past four years I have supported my wife and now 8-month-old baby as a retail manager.  I am 35 years old and my dream of being a police officer is slipping away.  Six years ago I put my self in a bad situation that I most regret.  To apply as a police officer one most obtain an honorable discharge.  When I was at my board hearing all three members of the board found me not guilty of intention of wrong doing, but because the drug was inside of me I was guilty.  All three board members, my CO, and RAMD J_ gave me endorsement to remain in the Navy.  I was at a party when I was on leave.  I went home to see my friends and family.  I was drunk and the next morning my friend told me that I was smoking.  I don’t smoke, so when I arrived at CV-67 I told my P.O. what had happened and I took a drug test.  Since then I have not gotten drunk and never will again.  I regret that night.  I am asking my board members to please read my letters from the RAMD and my seniors.  Please grant me my upgrade.  Thank you for your time.  My love for the time I served will always be remembered.”

Thank you B. G_ III.”

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4)
Commander, Carrier Group SIX, Recommendation Letter dtd December 2, 1999
Navy and Marine Corps Achievement Medal Certificate dtd April 20, 1999
Commander, Navy Region Southeast, Navy and Marine Corps Achievement Medal Letter dtd April 30, 1999
Commanding Officer, U.S. Naval Station, Roosevelt Roads, Letter of Commendation dtd May 14, 1998 (2)
Commanding Officer, U.S. Naval Station, Roosevelt Roads, Letter of Appreciation dtd December 14, 1998
Commanding Officer, U.S. Naval Station, Roosevelt Roads, Puerto Rico Letter of Commendation 
PRT Record
Evaluation Record & Counseling Reports (9 pgs)
Character Witness Statements (3)     
2005 Store Management Performance Appraisal (4 pgs)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19960826 – 19961027		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19961028		Date of Discharge:  20000319

Length of Service (years, months, days):

	Active:    03  04  21  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  26

Years Contracted:  4 

Education Level:  9				AFQT:  57

Highest Rate:  AOAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.5 (6)		Behavior:  4.5 (6)		OTA:  4.06

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy and Marine Corps Overseas Service Ribbon (2) Navy and Marine Corps Achievement Medal, Armed Forces Expeditionary Medal.

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: 

990528:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 990524, tested positive for THC.

990611:	Applicant’s statement admitting to smoking marijuana:  “I [APPLICANT] WAS AT MY GOING AWAY PARTY ON 17 MAY 99.  I DRANK TOO MUCH BEER, WENT TO THE BACKYARD OF MY FRIENDS HOUSE TO SMOKE A CIGARETT.  WITHOUT NOTICING IT WAS NOT A CIGARETT IT WAS MARIJUANA.  I TOOK ONE HIT OF SMOKE, WHEN MY FRIEND TOLD ME THAT IT WAS MARIJUANA I THREW IT AWAY.”
  
990615:	NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana on 990503.
	Award:  Forfeiture of $537.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

990620:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct drug abuse.

990620:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

990921:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse and recommended retention.

991021:	Commanding Officer, USS JOHN F. KENNEDY (CV-67), recommended Applicant’s retention.  Commanding Officer’s comments:  “On 990922, AOAA G_ presented his case to an administrative separation board.  The board members unanimously recommended that AOAA G_ be retained in the naval service.  Based on the superlative support of his chain of command, I strongly concur with the recommendation of the administrative board and recommend that he be retained in he naval service.”

991202:	Commander, Carrier Group SIX, concurring with Applicant’s administrative board and Commanding Officer, recommended Applicant be retained in the Navy.  Comments:  “...By retaining [Applicant] we reinforce the spirit and intent of the meaning of justice.  This sailor deserves a second chance.”

000203:	Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs) Applicant’s general (under honorable conditions) discharge by reason of misconduct due to drug abuse.  Comments:  “The recommendation of his chain of command not withstanding, my recommendation of to separate is based on AOAA G_’s lack of potential for future productive service based on his total disregard for Navy Core Values.  In addition, any Sailor who uses drugs demonstrates blatant disregard for the clearly articulated zero tolerance policy on drug abuse.”

000223:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Chief of Naval Personnel recommendation. 

000228:	CNPC directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000319 by reason of misconduct due to drug abuse (A) with a service characterization of general (under 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 (B and C).  

Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  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 as general (under honorable conditions) or under other than honorable conditions.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Relief denied.

The Applicant contends that his discharge is inequitable because the members of his administrative separation board found him “not guilty of intention of wrong doing.”  The Applicant was awarded nonjudicial punishment for violation of Article 112a, wrongful use of a controlled substance, and his administrative separation board found that the Applicant committed misconduct due to drug abuse. Neither the evidence of record nor the documentation submitted by the Applicant demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  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.

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.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  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 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), Change 24, effective 20 May 99 until 26 March 2000, 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.

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