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Docket No. ND02-01164

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

 ex-AR, USN
Docket No. ND02-01164

Applicant’s Request

The application for discharge review, received 020812, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions and the reason for the discharge be changed to misconduct due to insubordination.  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 030515.  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.  In light of the September 11^th tragedy I have really thought of the mistakes I made while in the Navy.  I have shamed my family, my country, and myself.  I am submitting this request in the hope of getting my discharge and RA Code changed so that I can rejoin the military and mend the mistakes I made.  In the time I have been out of the military I have received my GED, started a family held down a job at Delphi Automotive Systems, and I will soon attend college.  I was under a lot of pressure from peers to do what I did.  I do not use drugs and do not smoke.  Since these incidents have happened I have matured and grown up if giving this opportunity I can assure the Navy and the government that an incident like the prior will not be repeated.  Thank you for your time.

Documentation

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

Letter from Applicant, undated

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000122 - 000126	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  000127		Date of Discharge:  001026

Length of Service (years, months, days):

	Active:    00  09  00	Does not exclude lost time
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  10			AFQT:  58

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)	Behavior:  1.00 (1)		OTA:  1.83

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  16

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:

000519	Applicant reported for duty on the USS HARRY S. TRUMAN CVN-75.

000831:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0630, 000702 until 1930, 000718 (16 day/surrendered), violation of UCMJ, Article 112A: Wrongful use of marijuana on 000718.
	Award: Forfeiture of $502 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

000809:	Applicant declined alcohol/drug treatment.

001021	Applicant transferred to TPU NAVSTA Norfolk, VA pending discharge.

001026:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse (use), authority:  NAVMILPERSMAN, Article 1910-146.

Discharge package not available.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 001026 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:  Regulations limit the Board’s review to a consideration of the propriety and equity of a discharge.  Drug abuse (use) warranted processing for separation, normally under other than honorable conditions.  Although the Applicant claims his immaturity and peer pressure caused 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.  A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service is equitably characterized as being performed under other than honorable conditions due to his own misconduct.  The record clearly reflects the Applicant’s disregard for the Navy’s zero tolerance policy on drug use.  An upgrade to honorable or general under honorable conditions would be inappropriate.  Relief denied.

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, as requested by the Applicant.  Neither a less than 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.

Issue 2:  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 lifestyle, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.  After a complete review of the record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that his evidence of post service accomplishments was found not to mitigate the misconduct for which he was discharged.  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 recommended but not required.  

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 - 11 Feb 2001, 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/A9453/A9217/A9301/A9439