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

FOR OFFICIAL USE ONLY

ex-ET3, USN
Docket No. ND06-00298

Applicant’s Request

The application for discharge review was received on 20051213.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “CONVENIENCE”. 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 20061025.  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 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: 

“I would like to rebuild my good status as a U.S. citizen again.  I made my mistake and I paid for it.  I was honest and forth coming about the mistake I had made and wish to upgrade my discharge.  I have enclosed my previous Evals to show how I learned and flourished in the United States Military.  I have been working part time and attending school full time.  I am majoring in Environmental Engineering.”

Documentation

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

Applicant’s DD Form 214
Evaluation Report & Counseling Record cover the period of 030316 to 040315 (2pgs)
Evaluation Report & Counseling Record cover the period of 020316 to 030315 (2pgs)
Evaluation Report & Counseling Record cover the period of 010616 to 020315 (2pgs)
Navy and Marine Corps Achievement Medal Certificate, dtd June 20, 2003
Letter of Commendation from D. H. T_, Captain, U.S. Navy, Commander, Submarine Squadron THREE
Letter of Appreciation from K. B. L_, dtd March 24, 1999
Letter from Applicant
Court Memorandum, dtd December 9, 2004
Separation Document from Defense Personnel Records Imaging System
Agreement to Extend Enlistment Contract (2pgs)
Reenlistment Contract
Applicant’s DD Form 214 (service 2)    

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19971114 - 19980217	COG
	Active:   USN	19980218 - 20010625	HON

Period of Service Under Review:

Date of Enlistment:  20010626		Date of Discharge:  20050210

Length of Service (years, months, days):

	Active:    03  07  15  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  22

Years Contracted:  5 

Education Level:  11				AFQT:  71

Highest Rate:  ET2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.75 (4) 		Behavior:  3.25 (4) 			OTA:  3.89 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Battle “E” Ribbon, Good Conduct Medal (2), National Defense Service Medal, Armed Forces Expeditionary Medal, Enlisted Submarine Insignia

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: 

010626:	Reenlisted this date for a term of 5 years.

041209:	NJP for violation of UCMJ, Article 112a:  Wrongful use of a controlled substance.
Award:  Forfeiture of $946.00 pay per month for 2 months, restriction to TPU for 60 days, reduction to E-4.  No indication of appeal in the record.

041217:	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.

041217:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

050113:	Commanding Officer, DSU SAN DIEGO, CA recommended to COMSUBPAC PEARL HARBOR HI that Applicant be discharged under other than honorable conditions by reason of misconduct drug abuse.  Commanding Officer’s comments:  “ET3 D_ (Applicant) provided a urinalysis sample on 041130.  This sample tested positive for cocaine.  He was fully aware of the Navy’s zero tolerance policy regarding the use of illegal drugs and blatantly disobeyed it.  Therefore it is recommended that he be separated from the naval service with an other than honorable discharge.”

050118:	Medical evaluation by C_ J. C_, LCSW, 8758, Licensed Clinical Social Worker, Licensed Independent Practitioner.  Member has positive urinalysis for cocaine on 30 Nov 04.
	AXIS I: No Dx ETOH/V79.1
		 No Dx Drugs/V79.E
	AXIS II: No Dx made
	AXIS III: Shoulder pain
	AXIS IV: Made mistake-on restriction for 40 days.  Has plan to go to college
	AXIS V: GAF=75 (current)
	Assessment:
	Plan:
	Recommendation: Impact treatment.
	Other Recommendations: (1) Pt. Refusing tx @ this time.  Leaving Navy any day.

050118:	Applicant declined drug rehabilitation treatment.
 
050126:	GCMCA, Commander, Submarine Development Squadron 5 authorized the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050210 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).  

The Applicant requests an upgrade of his discharge based in part on his record of in service performance before the misconduct.  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.  The Applicant’s service record is marred by an award of nonjudicial punishment (NJP) for illegal drug use, 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.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.  Relief denied.

The Applicant also relies upon his post service accomplishments to support his request for upgrade.  The Applicant’s discharge characterization accurately reflects his service to this country.  Normally, to permit relief, a procedural impropriety or inequity must have existed during the period of enlistment in question.  No impropriety or inequity occurred during the Applicant’s enlistment.  Additionally, 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.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  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, employment record, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle are examples of verifiable documentation that should have been provided to receive consideration for relief based on post-service conduct.  The Applicant’s statements concerning post-service conduct, without documented evidence, were found not to mitigate the misconduct, which precipitated the discharge.  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 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 28 April 2005, 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 (use of a controlled substance).

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