Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. ND99-01180

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

 ex-AA, USN
Docket No. ND99-01180

Applicant’s Request

The application for discharge review, received 990831, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing.  The applicant did not list any representative on the DD Form 293.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 000605.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was 4 to 1 that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I want the character of service, reentry code, separation code, separation authority and narrative reason for separation all changed to reflect honorable service.  I had no illegal drugs in my system at the time that my urinalysis showed positive for illegal drugs. My wife was smoking marijuana at the time.  I was in the process of divorcing her, I was present at times when she was smoking pot.  It is possible that I had second hand exposure.  I never used any illegal drugs.  It is unfair for me to continue to suffer the effects of the Bad Discharge.  I have had no drug convictions since discharge.  I want to continue to serve my country in the military.  I plan to rejoin the service once the discharge is upgraded.

Documentation

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

Character reference from P_R_
Character reference from J_S_ dtd 31 May 00
Character reference from L_H_ dtd 01 June 00
Character reference from T_M.S_ dtd 26April 00
Character reference from R_V.H_

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	850507 - 850512	COG

Period of Service Under Review:

Date of Enlistment:  850513		Date of Discharge:  881128

Length of Service (years, months, days):

	Active:    03  06  16
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  36

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (3)	Behavior:  3.47 (3)		OTA:  3.47

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, AFEM, BER, MUC

Days of Unauthorized Absence:  1 

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

870805:	NJP for violation of UCMJ, Article 134: Incapacitated for duty on 25 June 1987.
	Award:  Forfeiture of $200 per month for 2 months, restriction and extra duty for 30 days, reduction to AA.  Reduction suspended for 6 months.  No indication of appeal in the record.

870805:	Retention Warning: Advised of deficiency (You have committed one or more offenses against the Uniform Code of Military Justice, or you have been convicted of an offense by civil court.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
880622:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700, 3 May 1988 to 0645, 5 May 1988 (1 day/surrendered).
	Award:  Forfeiture of $200 per month for 2 months, restriction and extra duty for 20 days.  No indication of appeal in the record.

880711:	Civil Conviction: Municipal Court of San Diego, CA for violation of CAL. Vehicle Code 23152(a) - Driving under influence of alcohol, CAL Vehicle Code 200002(a) - Failure to report accident where property damaged, and CAL Vehicle Code 1250(a) - operating vehicle without valid license.
Sentence:  Fine $800.00, confinement for 180 days, mandatory CAAC attendance, 5 years probation.  Confinement suspended for 6 months with credit for 1 day served.

881111:	NJP for violation of UCMJ, Article 112A: Use methamphetamine on  12Sep88.
	Award:  Forfeiture of $376 per month for 2 months, restriction for 60 days, reduction to AA.  No indication of appeal in the record.

881112:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, the commission of a serious offense and drug abuse.

881112:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

881113:	Drug and Alcohol Abuse Report: Amphetamines abuse, 13 Sep 1988, ashore off duty, random urinalysis.  Abuse denied.  DAPA and physician found applicant not dependent and recommended separate not via VA hospital.  Commanding officer recommended separate not via VA hospital.

881116:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, the commission of a serious offense, and drug abuse.

881123:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

900521	NDRB conducted documentary review found the discharge proper and equitable.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 881128 under other than honorable conditions for misconduct due to commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 NDRB found the applicant’s issue that his urinalysis was positive for marijuana due to ingestion of second hand smoke irrelevant.  Among the NJP’s the applicant was found guilty of none were for marijuana use.  He was found guilty of Violation of UCMJ Article 112A: wrongful use of methamphetamines.  Relief is not warranted.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps.  Reenlistment policy of the naval service is promulgated by the Bureau of Naval Personnel, Pers-282, 5720 Integrity Drive, Millington, TN 38055.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief, is therefore, denied.

.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until 
10 Jan 89, Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6730/A9241/A0157/A9317/A9307/A9217/A9223/A9237/A9439