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

FOR OFFICIAL USE ONLY

 ex-BUCN, USN
Docket No. ND06-00410

Applicant’s Request

The application for discharge review was received on 20060119.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  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 20061116.  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 attached document/letter: 

“Prior to my discharge on June 1, 2005, I had an outstanding military record.  I proudly served my country to the best of my ability, and I can honestly say that I gave 110% throughout my military career, as you can see from all of my evaluations prior to my discharge.  Originally, I signed up for a 5 year enlistment, and that was exactly what I intended to serve, but due to circumstances that I could not control, my time served went above and beyond 5 years.  You see, I was ready to separate from the Navy on March 1, 2005; but during my separation physical, they found out that my wrist was broken from a field exercise that we had undergone about 2 years prior.  The Naval Dr’s told me that I could either have it fixed, or wait.  But they told me that if I waited I would probably have problems getting my insurance to cover it even though it was a pre-existing condition.  So I decided to go ahead and have the surgery done, and this was when my world turned upside down.  While on recovery leave from my surgery, my 5 year mark came and they shut off my pay because they thought that I had separated from the Navy; and I can tell you that this was the single worst time period of my life for this reason and for further reasons that I am about to explain to you.  Please try to understand that everyone that I had come to known and love as my only family was now reaching their 5 year marks and leaving me behind to recover on my own with no support...no friends...no one to care about me.  I bounced back and forth between 4 different commands with in 1 months time, and once again, I knew no one and had not a soul in the world to care about what was going to happen to me, so I gave up, and I started drinking; because the way I saw it was that no one cared, so why should I.  I served my country for 5+ years and it seemed to mean nothing to anyone but me.  That’s when it happened, I went out one night to the last big party for everyone I knew and served with that had already separated and was leaving the area, and I became extremely intoxicated to the point that I don’t even remember the night.  I know that the next day, one of my friends told me that someone handed me a marijuana cigarette and that I took it and smoked it.  I found this very hard to believe because I am a very clean, straight edge guy, and in a sober state of mind I would never even consider doing something so crazy and stupid that would compromise my life, or everything that I had worked so hard to accomplish in the military; but a few days later I tested positive for THC and my whole life changed.  Since then, I have cleansed my mind, body, and soul and I can honestly tell you that with the help of God, I will never touch drugs or alcohol again for the rest of my life.  I am asking you from the bottom of my heart, please help me turn my life around and help me prove to my family, the world, and especially myself, that all my years of service to this country was not in vain by upgrading my discharge.  I recently found out that my fiancé is pregnant, but I am having problems finding a good job due to my discharge status.  I know that even though I don’t remember it, I did mess up; but please don’t make the only mistake of my military career be a life long mistake that can ruin not only my future, but the future of my unborn child.  I have done everything in my power to correct what I have done to cause me this shame, although personally, I will never be able to completely forgive myself for my drunken actions; but I know that I was a noble soldier up until that point, and once again I beg of you to take that into consideration while considering my upgrade in discharge.  Thank you so much for your time and patience, you have no idea how much this truly means to me...Thanks again and God bless!!!”

Documentation

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

Applicant’s DD Form 214
Excerpts from Applicant’s service records (11 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20000218 - 20000228	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000229		Date of Discharge:  20050601

Length of Service (years, months, days):

	Active:    05  03  02  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4 (17-month extension)

Education Level:  12				AFQT:  55

Highest Rate:  BU3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.8 (4) 	Behavior:  3.0 (4) 	OTA:  3.50

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Sea Service Deployment Ribbon (3), National Defense Service Medal, Expert Rifle Medal, Presidential Unit Citation, Navy Battle “E” Award, Good Conduct Medal, GWOT Expeditionary Medal.

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

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

Chronological Listing of Significant Service Events: 

050310:	Applicant voluntarily extended contract for 5 months.

050331:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 050328, tested positive for THC.

050411:	Substance Abuse and Rehabilitation Program: Applicant diagnosed alcohol abuse and recommended for outpatient half-day treatment program (Level I) for substance abuse.

050414:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance (marijuana).
	Award:  Forfeiture of $938.85 per month for 2 months, restriction for 60 days, reduction to E-3.  No indication of appeal in the record.

050421:	Due to alcohol/drug dependency, Applicant offered Level III treatment prior to separation from Naval Service.  Applicant declined.

050421:	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.

050421:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

050426:	Commanding Officer, Underwater Construction Team TWO, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “I recommend BUCN J_’s immediate separation by reason of misconduct due to drug abuse, and that his characterization of service be Other Than Honorable.  His actions clearly demonstrate a total disregard for the policies and guidelines that govern the conduct of our Navy.  He has no potential for continued Naval service.”

050513:	Commander, Navy Region Southwest, 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 20050601 by reason of misconduct due to drug abuse (A) 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 (B and C).

The Applicant desires an upgrade based on quality of service.  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as under other than honorable conditions 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.  There is irrefutable evidence that the Applicant’s conduct during his time in the Navy was not honorable.  Indeed, the Applicant received nonjudicial punishment on 20050414 for violation of UCMJ Article 112a Wrongful use of a controlled substance (THC).  The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an honorable characterization of service.  An upgrade to general would be inappropriate; therefore relief is denied.

The Applicant is advised that 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 Veterans' benefits or enhancing employment and educational opportunities.  Regulations limit this Board’s review to a determination on the propriety and equity of the discharge.  Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

While 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 service, the Board 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.  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, verifiable employment records, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct.  At this time, the Board found that the Applicant’s statements concerning post-service conduct, without documented evidence, do not mitigate the misconduct, which precipitated discharge.  No relief is granted on this basis.

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 post-service accomplishments or any other evidence related to the discharge at that time.  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 11, effective 
29 April 2005 until Present, Article 1910-146, 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