Author: CAP
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Docket No. ND03-00543

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

 ex-ABH3, USN
Docket No. ND03-00543

Applicant’s Request

The application for discharge review was received on 20030213.  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 lists a private representative as the representative on the DD Form 293.  Subsequent to the application, the Applicant notified NDRB on 20030624 the private representative no longer worked for the governor.  NDRB notified the Applicant on 20031212 of available representatives to assist him.  Applicant failed to respond to the letter, case reviewed without representation.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040224.  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 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I feel that my discharge from the U.S. Navy on 04Oct01 was very unfair.  I was told that I tested positive of 30 mg on a random urinalysis test given to me in Sigonella Sicily.  I’ve been free of drugs for 13 yrs now.  If not fault at the test Lap, I violated the UCMJ as per the urinalysis test results, but not intentionally or knowingly.  A package was submitted on my behalf without a DD form 293, by S_ H_ of the Governor’s Office, to the Board of Correction of Naval Records.  The package contains 4 of 5 of my supporting documents.  I was informed that the package should have been sent to the Navy Discharge Review Board, along with a DD form 293 and to summit a DD Form 293 to the NDRB and the Documents will be routed to the NDRB.  I’ll like to be once again the military man that I have become.”

Applicant marked the box that says “I PREVIOUSLY SUBMITTED AN APPLICATION ON (Enter date) AND AM COMPLETING THIS FORM IN ORDER TO SUBMIT ADDITIONAL ISSUES.  None were found.

Documentation

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

Letter of Deficiency, dated July 10, 2001
Applicant’s DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	880829 – 890606	COG
	Active:   USN			890607 - 930401	HON
		   USN			930402 – 981129	HON

Period of Service Under Review:

Date of Enlistment:  981130		Date of Discharge:  011004

Length of Service (years, months, days):

	Active:    02  10  05
	Inactive:  None

Age at Entry:  27			Years Contracted:  2 (25 months extension)

Education Level:  12			AFQT:  37

Highest Rate:  ABH2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.50 (2)	Behavior:  4.00 (2)		OTA:  4.07

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (2), NDSM, SASM with Bronze Star, CAR, NAM, OSR (3), GCM (3), KOSOVO, ACM, KLM, Flag Letter of Commendation

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 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

010309:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 010302, tested positive for THC.

010508:	NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana.
	Award: Forfeiture of $901 per month for 2 months, restriction for 60 days, reduction to ABH3.  No indication of appeal in the record.

010513:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by NAVDRUGLAB Jacksonville FL message 091807Z Mar 01 and your NJP of 010508.

010514:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

010524:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.  

010708:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

010719:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010817:	CNPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011004 under other than honorable conditions for misconduct due to drug abuse (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:  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.  However, 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.  

The NDRB noted an administrative error on the original DD Form 214.  Block 18 did not reflect the Applicant’s previous nine years of honorable service.  The Board notified Commander, Naval Personnel Command, Millington, TN and recommended the DD Form 214 be corrected or reissued.   

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, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   

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 33, effective 16 Jul 2001 until 21 Aug 2002, 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.
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