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Docket No. ND02-00586

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

 ex-MM3, USN
Docket No. ND02-00586

Applicant’s Request

The application for discharge review, received 020326, requested that the characterization of service on the discharge be changed to honorable.  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 030107.  After a thorough review of the records, supporting documents, facts, and circumstances unique to their 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I am respectfully requesting to have my discharge changed to honorable.

Please see attached letter and enclosures

Documentation

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

Applicant's DD Form 214 (Member 1)
Letter from Applicant, undated
Commanding Officer, USS CAMDEN (AOE 2) letter dated July 11, 2000
Letter of Recommendation dated June 18, 2000
Statement from MMCS(SW) dated June 25, 2000
Statement of Service from MMC(SW)dated June 28, 2000
Opinion of military character from OS1, undated
Letter of support recommendation dated June 24, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	960814 - 970708	COG

Period of Service Under Review:

Date of Enlistment:  970709			Date of Discharge:  001228

Length of Service (years, months, days):

	Active:    03  05  20
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4

Education Level:  12				AFQT:  53

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (4)			Behavior:  3.25 (4)		OTA:  3.53

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, Flag Letter of Commendation (2)

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

000324:	U.S. Naval Criminal Investigative Service Report.

000511:	NJP for violation of UCMJ, Article 107: False official statement on 2 Mar 00, to wit: "I deny that I ever purchased any type of controlled substance from FR S_ L_ and to my knowledged FR L_ has never been to my house and I don't think he knows where my house is."  Violation of UCMJ, Article 112A: Wrongful use lysergic acid diethylamide (LSD) on diverse occasions on Dec 99.
	Award: Forfeiture of $642 per month for 2 months, restriction and extra duty for 45 days, reduction to MMSN.  Forfeiture and reduction suspended for 6 months.  No indication of appeal in the record.

000614:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse.

000614:	Applicant advised of her rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

000713:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense and drug abuse, that the misconduct warranted retention, and recommended retention.

000826:	Commanding Officer recommended retention.

000928:	Commander, Naval Surface Group, Pacific Northwest forwarded recommendation of the administrative board and Commanding Officer, USS CAMDEN (AOE 2) to Chief of Naval Personnel Command (Attn: PERS 83) concurring with recommendations for retention.

001010:	Chief of Naval Personnel forwarded case to Assistant Secretary of the Navy (Manpower and Reserve Affairs) recommending Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

001027:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant's discharge with a discharge characterization of general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 001228 with a discharge characterization of general (under honorable conditions) for misconduct due to commission of a serious offense (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 ther case, the Board found that the discharge was proper and equitable (C and D).

Issue 1:  The Applicant requested the Board upgrade her discharge to honorable based upon her good service record.  The receipt of commendatory awards, favorable performance evaluations and positive recommendations for retention at an Administrative Discharge Board during an Applicant’s enlistment do not guarantee an honorable discharge.  While the Board agrees, that the Applicant had good evaluations throughout her naval service, her performance prior to her making a false official statement and admission of drug use does not mitigate her misconduct.  Drug abuse alone warranted processing for separation, normally under other than honorable conditions.  However, the Applicant was not processed for separation due to her drug abuse/use.  The Applicant was processed under the Separation Code “GKQ” - commission of a serious civilian or military offense.  The Applicant’s service record is marred by award of non-judicial punishment for violation of UCMJ Article, 107: false official statement, and Article 112A: wrongful use of lysergic acid diethylamide (LSD) on diverse occasions.  A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a service member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service and demonstrated she was unsuitable for further service.  The record is devoid of any evidence that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions.  Furthermore, the NDRB has no authority to 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 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 relief, 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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 30, dated 7 Nov 00, effective 30 Aug 00 until 24 Jan 01, Article 1910-142  [formerly 3630605]. SEPARATION 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 "afls14.jag.af.mil".

The names, and votes of the members of the Board are recorded on the original of ther 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 ther 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/A9453/A9217/A9205/A9201/A9439/A9221