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Docket No. ND02-01302

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

 ex-QMSA, USN
Docket No. ND02-01302

Applicant’s Request

The application for discharge review, received 020911, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance discharge review before a traveling panel closest to Coal Grove, OH.  The Applicant listed the Disabled American Veterans as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030722.  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 3630620. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current, Other Than Honorable to that of Honorable.

The FSM served on active service from December 13, 1993 to August 21,1996 at which time he was discharged due to a Pattern of Misconduct.

The FSM contends the current discharge is unfair as it is based on his lack of maturity, poor judgment, and loss of self control.

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant's discharge was improper.  The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted.  See, SECNAVIST 5420.174 (c), Par. (f) (1).

In continuance, the FSM has submitted three letters of recommendation / character reference, for review by the members of the Board, and for the sake of brevity we refer to those letters by reference only.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board's discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board's careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.

Respectfully,

Documentation

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

Applicant’s letter to the Board dtd Aug 30, 2002
VA Form 10-7131 dtd Aug 30, 2002
Copy of DD Form 214
Character Reference ltr from H_ M. W_, dtd Jan 21, 2002
Character Reference ltr from R_ A. P_, Health Educator/Counselor, dtd Jan 14, 2002
Character Reference ltr from J_ L. P_, dtd Jan 20, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930610 - 931212	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  931213		Date of Discharge:  960821

Length of Service (years, months, days):

	Active:    02  08  09
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  52

Highest Rate:  QMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (2)	Behavior:  3.90 (2)		OTA:  3.90

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, AFSM, NATA Medal, MUC, SASM with Bronze Star, AFEM

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 3630620.

Chronological Listing of Significant Service Events:

950427:	Civil Conviction:  Ironton Municipal Court for violation of attempting to pay for, share the cost of, or attempting to purchase any intoxicating liquor while under the age of 21.
Sentence: Fine $250.00 plus court cost.

950516:	Retention Warning:  Advised of deficiency (Your civil conviction on 950427 in Ironton, Ohio Municipal Court for attempting to pay for, share the cost of, or attempting to purchase any intoxicating liquor while under the age of 21.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960725:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance, to wit: marijuana.
	Award: Forfeiture of $490 per month for 2 months, restriction and extra duty for 45 days, reduction to QMSA.  No indication of appeal in the record.

960725:	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 abuse incidents in your current enlistment.

960725:	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.

960802:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

960806:	COMNAVAIRLANT Norfolk, VA 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 960821 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:  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.  While he may feel that his immaturity was a contributing factor, it does not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by award of non-judicial punishment (NJP) on for illegal drug use, thus substantiating the misconduct for which he was separated.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  An upgrade to honorable conditions would be inappropriate.  Relief denied.  For the Applicant’s edification, Sailors guilty of illegal drug use normally receive a discharge characterization of under other than honorable conditions. 

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 during the processing of a formal application for enlistment through a recruiter.  Relief is therefore denied.

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.  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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