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Docket No. ND02-00193

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

 ex-YNSR, USN
Docket No. ND02-00193

Applicant’s Request

The application for discharge review, received 020102, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance discharge review before a traveling panel closest to Crestview, Florida.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised the Applicant that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021115.  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 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I have written previously hoping to have my discharge changed and was told it could not be changed at the time.  Documents were sent to me listing all the things that were filed on my mistakes and misconducts.  All the chances that were given to me that I took for granted.  I took life and all the opportunities given to me by God and my country, as well as the CO, XO, AO and my CPO (YNC M_); I was even offered mentorship from YNC M_.  I continued to take military life for granted, hell the only time I saw military at war was when I was little.  On September 11^th I woke up to hear about jets flying into the world trade center and all I though about was flying back from Germany with my family and someone showing me the Towers.  I was lucky that my mother had gone to visit my grand mother a month before she had actually planned to go.  My father fought in Vietnam, his father fought in WWII and even my grandfather on my mother's side fought for his home, The Third Reich.  I've stopped taking life for granted and I think its time I fought for my country.  God Bless America

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):

	Inactive: USNR (DEP)	990524 - 990608	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990609		Date of Discharge:  001128

Length of Service (years, months, days):

	Active:    01  05  20
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  11			AFQT:  68

Highest Rate:  YNSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (3)	Behavior:  1.00 (3)		OTA:  1.28

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  20

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

000428	NJP for violation of UCMJ Article 86 (Absence without leave).
	[Extracted from Evaluation Report & Counseling Record for the report period 14Oct99-28Apr00.]

000428:	Retention Warning:  Advised of deficiency (Absence without leave.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

001002:	Vacate previous suspended reduction to YNSR.  [Extracted from Court Memorandum.]

001002:	NJP for violation of UCMJ, Article 92, violation of UCMJ, Article 112A (Wrongful use of a controlled substance) and Article 92 (Failure to obey order or regulation).
	Award: Forfeiture of $502.80 per month for 2 months.  No indication of appeal in the record.

001128:	DD Form 214: Discharged Applicant under other than honorable conditions by reason of misconduct due to drug abuse (use), authority:  NAVMILPERSMAN, Article 1910-146.

Note:  The Applicant’s separation package is missing from the service record.  The
NDRB requested the Applicant provide pertinent documentation to the Board for
review, if available.  The NDRB received no response from Applicant to this request.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 001128 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).

The record reflects the Applicant used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  The record clearly reflects the Applicant’s disregard for the requirements of military discipline and demonstrated he had no potential for further service.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) on two occasions.  A characterization of service of under than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, and falls short of that required for an honorable characterization of service.  An upgrade to under honorable conditions would be inappropriate.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.  In fairness to those Sailors, Commanders and Separation Authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The Board presumed regularity in the conduct of government affairs and determined that the discharge was proper and equitable.  Relief denied.

The NDRB has no authority to change reentry 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.  Relief is therefore denied. 

The following is provided for the Applicant’s information.  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, a positive employment record, documentation of community service, certification of non-involvement with civil authorities, and credible evidence that the Applicant is living a drug-free life style, are examples of verifiable documents that should be provided to receive consideration for a discharge upgrade, based on post-service conduct.  

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 additional documentation to support any claims of post-service accomplishments 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 27, effective 27 March 2000 - 11 Feb 2001, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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 "afls14.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/A9217/A9439/A9223/A9241/A9221