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Docket No. ND03-00231

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

 ex-FR, USN
Docket No. ND03-00231

Applicant’s Request

The application for discharge review was received on 20021121.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031121.  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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Please consider changing my character of discharge and RE code for the reasons noted in the attached letter.”

Comments submitted by Applicant’s counsel/representative (American Legion):

2.  “On behalf of the above referenced applicant, and in accordance with 32 C.F.R., section 724.166; SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the following informal comments; and/or issue(s). 

This former member was discharged Under Other Than Honorable Conditions due to misconduct as authorized by NAVMILPERSMAN, Art. 3630600.

Essentially, as noted on DD Form 293, this applicant is requesting that his discharge be upgraded because he never used drugs, only said he did to get discharged, and because of his post- service conduct.  He has submitted 61 pages of additional documentation attesting to his hard work, educational pursuits, clean police record and employment history for consideration.

The SR reflects that SNFM was awarded NJP on 940317 for VUCMJ, Arts. 92, 112a.  Following due process notifications, he was discharged for the misconduct on 940428.

Following review of the official Naval records, we opine that the issues raised on DD Form 293 amply advance this former member’s contentions and substantially reflect the probative facts needed for equitable review.  Accordingly, we rest further comment on the evidence of record.

The American Legion’s express purpose in providing this statement, and any other submittals or opinions of record, is to aid the applicant in resolving any improprieties or inequities in the character and basis for discharge.  Moreover, we rest assured that the Naval Discharge Review Board’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724; SECNAVINST 5420.174C, enclosure (1). 

This case is now respectfully submitted to the Board for deliberation and disposition.”

Documentation

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

Applicant’s DD Form 214 (3 copies)
Statement from Applicant (4 pages)
Letter from National Personnel Records Center to the Applicant, dated August 23, 2001
Twenty-eight pages from Applicant’s service record
Certificate from Department of Transportation, Federal Aviation Administration, dated March 31, 2002 (2 copies)
Letter from a Sergeant, City of Indianapolis, Police Department, dated July 2, 2002
Character reference dated February 29, 2001
Jobs maintained list (2 pages)
Schools attended
Welcome letter from International Union of Elevator Constructors, undated
Part II, The Landum-Griffin Act pages 28-48
Expense agreement, effective January 16, 1998
National Elevator Industry educational program
National Elevator Industry pension plan
National Elevator Industry health plan
Letter from National Elevator Industry, dated June 1, 1998
Quarterly working card, dated May 2002
Applicant’s driver’s license
Applicant’s social security card
Applicant’s license to carry weapon cards (3)
Applicant’s Armed Forces Identification card (front and back)
Applicant’s Armed Forces Liberty Pass (front and back)
JUPU One Card
Purdue University, Student of Technology at Indianapolis, Aeronautical Technology plan of study as of Spring 2001
Second semester 1999-2000 grade report information
Summer session 2000-2001 grade report information
First semester 2000-2001 grade report information
Second semester 2000-2001 grade report information
First semester 2001-2002 grade report information
Second semester 2001-2002 grade report information
Certificate of training, dated December 12, 2000
Official transcript from Ball State University
Ivy Tech State College, Spring 1999-2000
Student certificate statements, dated August 7, 2001, July 18, 2000, July 21, 1999,
Aviation Training Academy, dated November 1, 1995
Certificates of completion, dated November 1, 1995, May 31, 1995
Aviation Training Academy grade report (5 pages)
Purdue University, School of Technology at Indianapolis pamphlet
Letter from Purdue University, Office of Admissions, dated January 23, 2003
Police record check, dated December 31, 2002 (2 pages)
Certificate from Department of Transportation, Federal Aviation Administration, dated December 15, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930108 - 931011	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  931012		Date of Discharge:  940428

Length of Service (years, months, days):

	Active:    00  06  17
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  72

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

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 3630600.

Chronological Listing of Significant Service Events:

940317:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance, to wit: marijuana, violation of UCMJ, Article 92: Failure to obey a lawful order.
	Award: Forfeiture of $416 per month for 2 months, restriction and extra duty for 45 days, reduction to FR.  No indication of appeal in the record.

940325:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense.

940325:	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.

940329:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense.

940419:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940428 under other than 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 this case, the Board found that the discharge was proper and equitable (C and D).

Issue 1.  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.  

The Applicant contends that he never used drugs and admitted usage for the sole purpose of obtaining a discharge from the Navy in order to return home to family and friends.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to ensure the hardships and sacrifices required in order to serve their country.  Your self-admission to drug use is considered as “wrongful use of a controlled substance” punishable under the UCMJ, Article 112a.  The NRDB found that the Applicant’s service was equitably characterized.  Relief denied.

Issue 2.  The Board did consider the post-service documentation provided and recognizes the outstanding college transcripts and various training certificates obtained.  While these documents demonstrate that the Applicant has made significant strides in establishing his credibility as a productive member of society these accomplishments do not mitigate the seriousness of his misconduct and therefore do not warrant recharacterization of his discharge.  The discharge was proper and equitable.  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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 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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