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Docket No. ND03-00900

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

 ex-SN, USN
Docket No. ND03-00900

Applicant’s Request

The application for discharge review was received on 20030502.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests 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 from the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040401.  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.  Violation of Privacy by Commander B. M_

2.  I want to reenlist in the Navy”

Additional issues submitted by Applicant’s counsel/representative (Veterans Of Foreign Wars):

3.  “Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning her application.  Her records were reviewed on Sep 17, 2003 and the following comments are hereby submitted:

We concur with the Applicant’s contentions that her discharge should be upgraded.

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

Documentation

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

Letter from Congressional Liaison Office to United States Senator, dated March 11, 2003
E-mail from Commanding Officer, USS GERMANTOWN to Applicant’s father, dated April 21, 2002
Statement to Naval Criminal Investigate Service from Applicant, dated February 19, 2002
Report of Investigation, dated March 3, 2002 (8 pages)
DD Form 149, dated July 22, 2002
Standard transfer order, dated June 28, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000712 - 000725	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  000726		Date of Discharge:  020724

Length of Service (years, months, days):

	Active:    01  11  29
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  57

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.50 (2)	Behavior:  2.00 (2)		OTA:  2.09

Military Decorations:  None

Unit/Campaign/Service Awards:  NER, N&MCOSR, SSDR, 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 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

010420:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation on 010327.
	Award: Restriction for 30 days.  DAPA.  No indication of appeal in the record.

010420:	Retention Warning: Advised of deficiency (Failure to obey order or regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

010924:	NJP for violation of UCMJ, Article 81: Conspiracy, violation of UCMJ, Article 121 (3 specs): Larceny and wrongful appropriation.  (1) Steal two tank tops and one T-shirt on 010731, a value of 4,400 Japanese Yen, the property of Sanshin Store, (2) Steal three necklaces on 010731, a value of 5,200 Japanese Yen, the property of Kiko Co, Ltd Store, (3) Steal three sets of brassier and panties, two brassieres, 6 panties and six pair of socks on 010731, a value of 13, 694 Japanese Yen, the property of JUSCO Department Store.
	Award: Forfeiture of $584 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

020303:	Report of Investigation regarding the possession of illegal drugs.

020330:	NJP for violation of UCMJ, Article 91 (2 specs): Insubordinate conduct toward warrant officer, non-commissioned officer or petty officer on 020319.  (1) Willfully disobey lawful order BM3 D_ on 020319, (2) Disrespectful in deportment to EM1 D_ in March 2001, to wit: saying to him “No, that’s not my job, that’s bullshit, I’m not doing any of what you’re saying, get out of my face, and you don’t need to talk to me.”
	Violation of UCMJ, Article 92: Dereliction of duty.  Derelict in the performance of those duties in that she willfully failed to finish her work and clean the scullery, on 010310.
	Award: Special court-martial.  Administrative separation procedure.  [Extracted from Commanding Officer’s message dated 000627.]  No indication of appeal in the record.

020330:	Retention Warning:  No further information found in service record.  

020625:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse.

020625:	Applicant advised of her rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

020627:	Applicant’s statement indicating it was not her intent to posses illegal drugs.

020627:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse (use).

020702:	COMPHIBGRU ONE 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 20020724 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:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. 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 record is marred by award of non-judicial punishment (NJP) on three separate occasions, to include the appropriate retention and discharge warnings.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated she was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate.  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. 

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 documentation to support any claims of post-service accomplishments or any other evidence related to her discharge 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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