Author: CAP
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Docket No. ND02-00767

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

ex-ENFN, USN
Docket No. ND02-00767

Applicant’s Request

The application for discharge review, received 20020509, requested that the characterization of service on the discharge be changed to honorable and the reenlistment code be changed to Re-1.  The Applicant requested a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030812.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I believe my discharge was improper because I was told that there is ~~0~~ tolerance for drug use and while I was discharged with a perfect record, an E-6 was being charged for drug use but only his rank suspended and he was allowed to continue his service.  I also passed a drug test 1 month after I was out to work for Conan of Virginia.  I only wish to have my discharge changed to either go back into the Military or become a Firefighter/EMT.  I now have a family with 2 children and I have learned from my mistakes and have had a successful career with the military up until that point, and was planning on Retiring.  Please reconsider for I have only 2 yrs until I cannot apply for Firefighter.

2.  Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on 7/18/2003 and the following comments are hereby submitted:

We concur with the Applicant’s contention that his discharge be upgraded, not withstanding the NJP, in 1996, this Persian Gulf Veteran received the Kuwait Liberation Medal, the SW Asia Service Medal, the Joint Meritorious Unit Commendation and the Navy Unit Commendation.  In addition he was also awarded the USS Anzio’s Blue Jacket of the Month for this outstanding sailor.  We ask that SECNAVINST 5420.174C, par 9.3(a)(d) be considered in your decision of the Applicant’s request.

We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrading the Applicant General Discharge to Honorable Discharge.

Documentation

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

Applicant’s DD Form 214 (3)
Letter from Applicant, undated
Seventeen pages from Applicant’s service

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890627 - 890628	COG
	Active:   USN			890629 - 930521	HON	RAD and transferred 
to IRR
	Inactive: USNR		930522 – 950201	HON
		   USNR (DEP)	950202 – 950306	HON

Period of Service Under Review:

Date of Enlistment:  950307		Date of Discharge:  960819

Length of Service (years, months, days):

	Active:    01  05  13
	Inactive:  None

Age at Entry:  24			Years Contracted:  4

Education Level:  12			AFQT:  45

Highest Rate:  EN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)	Behavior:  4.00 (1)		OTA:  4.00	(4.0 evals)
Performance:  4.50 (2)	Behavior:  2.50 (2)		OTA:  3.79	(5.0 evals)

Military Decorations:  None

Unit/Campaign/Service Awards:  KLM, GCM, SSDR (2), JMU, NDSM, BER, NUC, SASM with 2 Bronze Stars, Letter of Appreciation

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

960809:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
	Award: Forfeiture of $677 per month for 2 months, restriction and extra duty for 45 days, reduction to ENFN.  No indication of appeal in the record.

960819:	DD Form 214 discharged Applicant under honorable conditions (general) by reason of misconduct due to drug abuse (use), authority:  NAVMILPERSMAN, Article 3630620.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960819 under honorable conditions (general) 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).

Issues 1 and 2.  There is credible evidence in the record that the Applicant used illegal drugs.  Despite the positive aspects of the Applicant’s service, drug abuse warranted processing for separation, normally under other than honorable conditions.  The fact that a few servicemembers may have used drugs and were not subsequently discharged does not make the Applicant’s discharge inequitable.  Relief denied.

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.

The Applicant’s discharge characterization accurately reflects his service to his country for the enlistment under review.  The discharge was proper and equitable.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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.
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