DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-510@LP
Docket No. 1036-01
25 June 2001
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
y
Subj: REVIEW OF NAVAL RECORD OF 2. iesmemnniiaiaie:
Ref: {a) 10 U.S.C.1552
Encl: (1) DD Form 149 w/attachments
(2) Case Summary
(3) Subject's Naval Record
1. Pursuant to the provisions of reference (a), Petitioner, a
former enlisted member of the Navy, applied to this Board
requesting, in effect, that his naval record be corrected to
show a more favorable discharge than the discharge under other
than honorable conditions issued on 2 December 1983.
2. The Board, consisting of Ms. Madison and Messrs. Pfeiffer
and Silberman reviewed Petitioner's allegations of error and
injustice on 20 June 2001 and, pursuant to its regulations,
determined that the corrective action indicated below should be
taken on the available evidence of record. Documentary material
considered by the Board consisted of the enclosures, naval
records, and applicable statutes, regulations and policies.
3. The Board, having reviewed all the facts of record
pertaining to Petitioner's allegations of error and injustice
finds as follows:
a. Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and
regulations within the Department of the Navy.
b. Although it appears that Petitioner's application to
the Board was not filed in a timely manner, it is in the
interest of justice to waive the statute of limitations and
review the application on its merits.
c. Petitioner enlisted in the Navy on 10 September 1980
for four years at age 19. He was advanced to EM3 (E-4) and
served without incident until a Navy drug laboratory reported
that the urinalysis he submitted on 31 March 1983 had tested
positive for marijuana. He was evaluated by a counseling and
assistance center on 2 May 1983 and was found to be a drug
abuser, but not drug dependent. Level I treatment was
recommended.
d. On 13 August 1983 Petitioner received nonjudicial
punishment (NJP) for use of marijuana. Punishment imposed
consisted of reduction in rate to EMFN (E-3), forfeitures of
$366.60 per month for two months, and 45 days of restriction and
extra duty.
e. On 20 October 1983, Petitioner was notified that
administrative discharge action had been initiated by reason of
misconduct due to drug abuse as evidenced by the positive
urinalysis of 31 March 1983. He was advised of his procedural
rights, declined to consult with legal counsel, and waived the
right to present his case to an administrative discharge board
(ADB). However, Petitioner did submit a statement to the effect
that he tried to stay out of trouble during his naval career and
set a good example for others, except for the fact that he
smoked marijuana. He noted that there had been no other cases
on board prior to his in which an individual was discharged for
a positive urinalysis. He expressed regret for his abuse of
marijuana and asked that his past performance, hard work and
long hours be considered.
f. The commanding officer (CO) recommended a general
discharge under honorable conditions by reason of misconduct
due to drug abuse. The CO stated that Petitioner's abuse of
drug could not be tolerated, his attitude toward drug abuse was
one of indifference, and he refused to accept the fact that drug
use while ashore would not be tolerated by the Navy. However,
the CO recommended that his service be characterized as under
honorable conditions given his otherwise good performance and
unblemished conduct record. On 11 November 1983, the Commander,
Naval Military Personnel Command directed that Petitioner be
discharged under other than honorable conditions by reason
of misconduct due to drug abuse. He was so discharged on
2 December 1983.
f. Since discharge, Petitioner has earned a bachelor of
science degree and is employed as a journeyman electrician for a
2
state power company, and has served as a member of peer tutoring
program helping students at a local junior college. The Federal
Bureau of Investigation reports that Petitioner has no record of
any civil convictions.
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants favorable
action. In this regard, the Board notes that except for the
single NJP which led to Petitioner's discharge, Petitioner's
overall performance and conduct was highly satisfactory to the
extent that his CO recommended a characterization of service of
under honorable conditions. Although it was within the purview
of the Commander, Naval Military Personnel Command to override
the commanding officer's recommendation, the Board believes the
commanding officer in this case was best qualified to determine
which characterization of service was warranted. The Board
additionally notes that Petitioner has at least in part, atoned
for his drug related misconduct by his good post-service
conduct. Accordingly, the Board concludes that it would be
appropriate and just to recharacterize the other than honorable
condition discharge to a general discharge.
RECOMMENDATION:
a. That Petitioner's naval record be corrected to show
that he was issued a general discharge on 2 December 1983 vice
the other than honorable discharge actually issued on that date.
b. That a copy of the Report of Proceedings be filed in
Petitioner's naval record.
c. That, upon request, the Department of Veterans Affairs
be informed that Petitioner's application was received by the
Board on 9 February 2001.
4. It is certified that a quorum was present at the Board's
review and deliberations, and that the foregoing is a true and
complete record of the Board's proceedings in the above entitled
matter.
ROBERT D. ZSALMAN ALAN E. GOLDSMITH
Recorder Acting Recorder
5. Pursuant to the delegation of authority set out in Section 6
(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulations, Section 723.6
(e)) and having assured compliance with its provisions, it is
hereby announced that the foregoing corrective action, taken
under the authority of reference (a), has been approved by the
Board on behalf of the Secretary of the Navy.
W. DEAN b
Executive D r
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