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

Docket No. ND01-00527

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

ex-DCFA, USN
Docket No. ND01-00527

Applicant’s Request

The application for discharge review, received 010315, requested that the characterization of service on the discharge be changed to honorable and his re-enlistment code upgraded from an Re-Code-4 to a re-enlistment codes so he may re-enlist.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010928.  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 unanimous that the character of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I (applicant) respectfully request that My reenlistment code be upgraded from an RE-4 to a re-enlistable RE Code so I may be re-enlist into the United States NAVY.  I feel that I was an out standing Damage Controlman; a hard worker and a loyal servant to the U.S. NAVY.  I popped positive for meth amphetemines in April of 1996.  I as well as witnesses and the support of my leading petty officer, Chief Petty Officer Division Officer (LT), and Chief Engineer (LCDR) foot tooth and nail to prove to the CAPT on board USS Bunker Hill (SG-52) that I neither willingly nor knowingly took in any substance, that would cause me to come up positive on a urinalysis.  I feel I was made an example out of.  I've been trying for the last 4+ years to re-enlist.  Doors have constantly been closed in my face.  I've written to my congressman as well as my senator (Sen. C_ D_ C.T.) (Cong M C.T.)  They're offices in turn contacted me and lead me to this office.  If there is any thing you can do or any info you can give me to help my cause Please contact me.  Respectfully

Documentation

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

Copy of DD Form 214
Copy of Enlisted Performance Evaluation Reports dated 93Jul26 to 95Jan31 and 95Feb01 to 96Jan 15
Copy of General Discharge Certificate dated August 7, 1996

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	930204 - 930725	COG

Period of Service Under Review:

Date of Enlistment:  930726		Date of Discharge:  960807

Length of Service (years, months, days):

	Active:    03  00  12
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  47

Highest Rate:  DCFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (1)	Behavior:  3.80 (1)		OTA:  3.80	4.0 eval
Performance:  4.00 (1)	Behavior:  3.00 (1)		OTA:  3.50	5.0 eval

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR (2), SASM, BER (2)

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

950131:	Counseling:  Advised of deficiency (performance), notified of corrective actions and assistance available.

950915:	Counseling:  Advised of deficiency (personal behavior. adverse), notified of corrective actions and assistance available.

960212:	Counseling:  Advised of deficiency (Applicant was late arriving on station for flight quarters.  Applicant was sleeping in his rack.), notified of corrective actions and assistance available.

960228:	Counseling:  Advised of deficiency (responsibilities), notified of corrective actions and assistance available.

960403:	NAVDRUGLAB, San Diego, CA reports applicant's urine sample, received 960325, tested positive for amphetamines/methamphetamine.

960412:	NJP for violation of UCMJ, Article 112A: Wrongful use, possession of a controlled substance on 7Mar96.
	Award: Forfeiture of $490 per month for 2 months, restriction and extra duty for 45 days, reduction to DCFA.  No indication of appeal in the record.

960412:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse.

960412:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

960426:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed drug abuse and a serious offense, that the misconduct warranted separation, and recommended discharge general (under honorable conditions).

960502:	Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to the drug abuse and misconduct due to commission of a serious offense.

960515:	Drug and Alcohol Abuse Report: Amphetamines possession, shipboard.  Unit sweep urinalysis March 7, 1996.  Commanding officer recommended separate not via VA hospital.  Comments: DCFN (applicant) is an average performer.  He does not possess potential further Naval service and is being processed for separation.

960502:	Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to drug abuse (use) and misconduct due to commission of a serious offense.

960703:	BUPERS directed the applicant's discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 960807 general (under honorable conditions) for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

In response to the applicant’s issue 1, the Board determined that the applicant tested positive for amphetamines/methamphetamines and was properly disciplined and discharged.  The Navy’s ‘zero tolerance’ policy for the use of illegal drugs was in effect at the time that the applicant committed his misconduct and remains in effect today.  The Board determined the discharge was proper and equitable.  Relief denied.

Additionally, the applicant requests that his re-enlistment code be changed from RE-4 to a code that will allow him the opportunity to re-enlist into the military.  The NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other branch 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 Commander Navy Personnel, Pers-814, 5720 Integrity Drive, Millington, TN 38055, and the Commandant, United States Marine Corps, Code MMPE‑5, Washington, DC  20380-3001.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief denied.

The following is provided for the benefit of the applicant.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice 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, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The applicant did not provide any of these documents.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 112a, for wrongful use, possession of a controlled substance, if adjudged at a Special or General Court-Martial.

C.  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.  

D.  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.

E.  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 view DoD Directive 1332.28 and other Decisional Documents by going online at "afls10.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  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