Author: CAP
Last saved by: Department of the Navy
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Docket No. ND01-01177

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

 ex-SR, USNR
Docket No. ND01-01177

Applicant’s Request

The application for discharge review, received 010917, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  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 020419.  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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I am requesting that my other than honorable discharge be upgraded to a general discharge (under honorable conditions).  So I may re-enlist into the United States Navy.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  940719		Date of Discharge:  961018

Length of Service (years, months, days):

	Active:    02  01  26
	Inactive:  00  01  03

Age at Entry:  19			Years Contracted:  8

Education Level:  12			AFQT:  35

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)	Behavior:  2.00 (1)		OTA:  2.33

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NER

Days of Unauthorized Absence:  10

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

940804:	You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your preservice civil involvement:  4/94 in park after hours, paid $65.00 fine.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

950210:	NJP for violation of UCMJ, Article 134: Disorderly which conduct was of a nature to bring discredit upon the armed forces n 2Feb95.
	Award: Extra duty for 30 days.  No indication of appeal in the record.

950508:	NJP for violation of UCMJ, Article 86:
	Award: Restriction and extra duty for 30 days.  No indication of appeal in the record.

960715:	NAVDRUGLAB, Jacksonville, FL reports applicant's urine sample, received 960701, tested positive for THC.

960720:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance, to wit: THC.
	Award:  Forfeiture of $200 per month for 1 month, restriction and extra duty for 45 days, reduction to SR.  No indication of appeal in the record.

960724:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive test for THC indicated on Naval Drug Laboratory message dated 150703ZJul96.

960725:	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.

960730:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

960806:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

960830:	Applicant to unauthorized absence 0730, 30Aug96.

960909:	Applicant from unauthorized absence 0730, 9Sep96 (10 days/surrendered).

961003:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Fail to go at time prescribed to appointed place of duty on 20Aug96, (2) Unauthorized absence from 0730, 30Aug96 to 0730, 9Sep96 (10 days/surrendered).
	Award:  Forfeiture of $150 per month for 1 month, restriction and extra duty for 10 days.  No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 961018 under other than honorable conditions for misconduct due to drug abuse (use) (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).

Issue 1.  The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions.  Relief is therefore denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  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 relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  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.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE.

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 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: A6600/A9453/A9241/A9221