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

Docket No. ND02-00290

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

 ex-AN, USN
Docket No. ND02-00290

Applicant’s Request

The application for discharge review, received 020122, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized.  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 020829.  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 would appreciate if this Board changed my discharge from Other Than Honorable to Entry Level Separation so I would be able to join the U.S. Navy again.

All the details are listed on an additional issue attach to this application.

2.  When I joined the Navy I choose to be an Air Traffic Controller.  I went to the Naval Training Center Great Lakes, Illinois on July 14^th 1997, it was very difficult but on September 20^th 1997 I completed my first step in the Navy.  I was send to Pensacola Florida to start my training as an Air Traffic Controller.  Everything was fine until I started my medical examination.  I was informed at the time, that my English wasn’t good enough for an Air Traffic Controller so I wasn't able to go to school.  This episode made me really sad and depressed, so I thought about quitting the Navy.  I talked to my superior a petty office 1^st class and I told him about my thoughts in quitting the Navy, but he told me that it was practically impossible for me to quit the Navy unless "I did something really stupid."  A few days later I got my new orders, I was send to Construction Electrician School in Wichita Falls Texas Shepard AFB.  I left Pensacola on 19 Dec 1997 and I had to report to my new command on 30 Dec 1997.  My wife was living in an apartment of base, so I had to move her back to New York, our hometown.  We went back to New York for Christmas and on 26 Dec 1997 I was travelling back to Pensacola in order to get the rest of my things and my car.  On 28 Dec 1997 I started my trip to Wichita Falls.  At this point I really wanted to get out of the navy, so I did the stupid thing, I smoked marijuana during my trip from Pensacola to Wichita Falls.  I arrived in Wichita Falls on 30 Dec 1997 and I turned my self in.  I spoke to a petty officer 1^st class, that happened to be the OOD that day, he told me I had to take the urine exam, so I did and it came out positive.  On 01 Mar 1998 I was discharged under Other than Honorable conditions. Today I realize how stupid I was and if its possible I would like to be given a second chance.  I would really appreciate if this Board changed my discharge from Other than Honorable to Entry level Separation so I would be able to join the United States Navy again.  Sincerely

Documentation

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

Copy of DD Form 214
Twelve pages from applicant's service record
Copy of applicant's social security card
Letter from Commander, Navy Recruiting Area ONE, dated May 22, 1997
Education Evaluation request dated May 20, 1997 (with eight pages of supporting documents)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	970530 - 970713	COG

Period of Service Under Review:

Date of Enlistment:  970714		Date of Discharge:  980301

Length of Service (years, months, days):

	Active:    00  07  18
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  16			AFQT:  54

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*No Marks Found in the service record.

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:

980213:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance between 19 Dec and 29 Dec 97, to wit: marijuana.  No further information found in service record.

980217:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all drug incidents in the current enlistment and as evidenced by nonjudicial punishment of 13 February 1998, for violation of UCMJ Article 112a, Wrongful use of a controlled substance.

980217:	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.

980217:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments (verbatim): "Although I truly believe [applicant] received bad advice from a staff member in his previous command in regards to "Getting out of the Navy", he did in fact willfully violate the Navy's drug use policy.  Therefore, we must process him for a discharge under Other Than Honorable conditions or we will make a mockery of the Navy's policy."

980225:	Chief of Naval Training and Education directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980301 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.  By regulation, only members discharged within the first 180 days of enlistment are given a characterization of service of entry level separation.  Since the applicant served for over seven months, he does not qualify for an entry level separation.  Relief is therefore denied.

Issue 2.  There is credible evidence in the record that the applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions.  The discharge was proper and equitable.  Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  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.  Relief not warranted.

The applicant 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.  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 18, effective 12 Dec 97 to 19 May 99, 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 "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/A9317/A9241/A9221