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Docket No. ND02-00257

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

ex-HTFA, USN
Docket No. ND02-00257

Applicant’s Request

The application for discharge review, received 020114, 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 020815.  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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  My discharge was inequitable because the discharge was based on one isolated incident in 23 months of service with no other adverse action.

The incident was committed while under emotional duress.  I would also like my reentry code up graded to RE-3.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive:  USNR(DEP)		950824 - 951204	COG

Period of Service Under Review:

Date of Enlistment:  951205		Date of Discharge:  971104

Length of Service (years, months, days):

	Active:    01  11  00
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  8 GED		AFQT:  69

Highest Rate:  HTFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF			Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  BER

Days of Unauthorized Absence:  58

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.  [Note BUPERSINST 1900.8 list the authority as 3630600 instead of 3630605]

Chronological Listing of Significant Service Events:

970725:	Unauthorized absence commences at 0715, 25Jul97.

970801:	Unauthorized absence terminates at 1730, 1Aug97 (7 days/surrendered).

970806:	Unauthorized absence commences at 0715, 6Aug97.

970904:	Applicant misses ship's movement.

970905:	Applicant declared a deserter.

970916:	Applicant misses ship's movement.

970923:	Applicant terminates unauthorized absence at 1100, 23Sep97 (48 days/surrendered).

970926:	Applicant commences unauthorized absence at 0715, 26Sep97.

970929:	Applicant returns from unauthorized absence at 0900, 29Sep97 (3 days/surrendered).

970930:	NJP for violation of UCMJ, Article 86 (4 specs): Unauthorized absence; violation of UCMJ, Article 112A: Wrongful use of marijuana.
	Award: Oral reprimand, restriction and extra duty for 45 days, reduction to HTFA.  No indication of appeal in the record.

971002:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and drug abuse as evidenced by non-judicial punishments.

971002:	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. 

971020:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and drug abuse.  Commanding Officer’s comments (verbatim): In his short time on board this command, Hull Technician Fireman (Applicant) has displayed an inability to adapt to the Navy's rules and regulations.  At Commanding Officer's non-judicial punishment he admitted to wrongfully using marijuana despite knowing the Navy's "Zero Tolerance" drug use policy.  He was also found guilty of numerous unauthorized absences, including an absence in excess of 30 days.  In view of the foregoing, I recommend Hull Technician Fireman (Applicant) be separated from the naval service with an Other Than Honorable discharge as expeditiously as possible.

971024:	NJP for violation of UCMJ, Article 112A (2 specs): Use marijuana on 23Sep97 and 29Sep97.
	Award: Oral reprimand, restriction and extra duty for 45 days, reduction to HTFA.  No indication of appeal in the record. 

971030:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct.

971117:	Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty.  Random urinalysis 971002.  Physician found Applicant not dependent and recommended separation.  Commanding Officer recommended separation.  Comments:  HTFN (Applicant) was screened by DAPA as a result of a positive testing of THC from a random urinalysis on 971002.  Applicant was evaluated by the Medical Officer and was found not dependent on drugs.  Member is considered to have no potential for further naval service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 971104 under other than honorable conditions for misconduct due to absent without leave - 30 days or more (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).

Contrary to the Applicant's claim that his discharge resulted from one isolated incident, the Applicant's record indicates four unauthorized absences totaling 58 days, the use of marijuana on three occasions, and missing ship's movement.  All of these offenses are considered serious.  The term "serious offense" should not be confused with what is considered serious in the civilian world.  The Uniform Code of Military Justice (UCMJ) categorizes a wide range of offenses as serious:  unlawful use of a controlled substance, forgery, missing ship's movement, unauthorized absence in excess of 30 days, making false official statements, and so forth, right up to the most "serious" crimes of spying, aiding the enemy in time of war, mutiny, rape and murder.  Although all of these offenses come under the broad UCMJ category of "serious offense," some are clearly more heinous than others.  A person in the military must abide by the standards set forth in the UCMJ, regardless of what guidelines his civilian counterparts might utilize.  Long term unauthorized absences; missing ships movement and unlawful use of controlled substances are "serious offenses" under the UCMJ.  The commission of any single "serious offense" supports a discharge under other than honorable conditions.  The Applicant's discharge was proper and equitable.  Relief denied.

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.  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. 

The Applicant contends his disciplinary problems were the result of emotional duress.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB agrees that the Applicant's service was equitably characterized as being performed under other than honorable conditions.  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.  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.  Relief not warranted.

The Applicant is reminded that the period of eligibility for a personal appearance hearing is 15 years from the date of discharge.  The application package must be submitted to the NDRB prior to the expiration of the 15 year period.  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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 11 Dec 97, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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 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:  A6750/A9217/A9231/A9439/A9241/A9221