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Docket No. ND02-00578

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

 ex-CR, USN
Docket No. ND02-00578

Applicant’s Request

The application for discharge review, received 020326, 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 021217.  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.  To whom it may concern:
Getting thrown out of the NAVY was the biggest mistake of my life since then I have done a lot of growing up, I was only seventeen when I entered the navy I am twenty now, I've had three years to think about what I did wrong, and how not to do wrong this time.  Everybody deserves a second chance, that’s all I am asking for is that second chance to succeed in the NAVY.  I k_ r_ d_ respectfully request to have my discharge and re-entry code changed to where I can once again join the navy.

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:   USN			None
	Inactive: USNR (DEP)	990216 - 990402	COG

Period of Service Under Review:

Date of Enlistment:  990403		Date of Discharge:  990908

Length of Service (years, months, days):

	Active:    00  05  06
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  42

Highest Rate:  CR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB		Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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:

990216	Standard Form 86, Applicant admitted to pre-service marijuana use.

990819:	NJP for violation of UCMJ, Article 86: Did at or about 1830, 990730, without authority, absent himself from his organization, to wit: NCTC Gulfport and did remain so absent until at or about 1450, 990801, violation of UCMJ, Article 92: (2 Specifications), Spec 1: Having knowledge of a lawful order issued by CO, NCTC to wit: NCTC Student Handbook, Page 3, did, on or about 990730, fail to obey the same by wrongfully leaving NCBC after being placed on Phase 1; Spec 2: Having knowledge of a lawful order issued by CO, NCTC to wit: NCTC Student Handbook, Page 3, did, on or about 990730, fail to obey the same by wrongfully wearing civilian clothes while in Phase 1; violation of UCMJ, Article 112a: On or about 990809, wrongful use Tylox [Percocet] a schedule II controlled substance which was not prescribed to him.
Award:  Forfeiture of $479.00 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

990819:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense.

990819:	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.

990823:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and misconduct commission of a serious offense.  Commanding Officer’s comments (verbatim): [CR D_ (Applicant) reported to this command on 11 June 1999, in a Temporary Duty Under Instruction status for BU “A” school.  On 30 July 1999, after he had been placed in Phase I, CR Davis was reported absent without leave.  He returned at 1450 1 August 1999.  On 9 August 1999, after a report from another student, CR D_ (Applicant) was taken to Keesler AFB Medical Center for drug overdose treatment…Based on the foregoing…it is recommended that CR D_ (Applicant) be separated from the naval service with a discharge characterized as other than honorable.] 

990824:	Chief of Naval Education and Training authorized 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 990908 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 Board found that the applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that his youth was a factor that contributed to his misconduct, the record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s service record is marred by award of non-judicial punishment for several violations of the UCMJ to include using a controlled substance.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  The record clearly reflects the Applicant’s disregard for the Navy’s Zero Tolerance Policy on drug use and demonstrated he was unsuitable for further service.  Relief denied.

Issue 2:  Concerning a change in reenlistment code, 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.  Relief is therefore denied.

Issue 3:  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 relief, based on post-service conduct.  The Applicant did not provide any post-service documentation.  Relief denied.  

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 highly recommended but not required.  

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until 26 March 2000, 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/A9301/A9241/A9217/A9223/A9439/A9445/A9221