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Docket No. ND03-01038

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

 ex-ACAA, USN
Docket No. ND03-01038

Applicant’s Request

The application for discharge review was received on 20030528.  The Applicant requests the characterization of service received at the time of discharge be changed to entry level separation or uncharacterized.  The Applicant requests a documentary record review.  The Applicant did not list a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040415.  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 considered 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:

“In block 27 of DD Form 214 I would like RE-code changed to 1 or 2.  I would like a review of these changes for the following reasons …

1.  -My average conduct and efficiency rating/behavior and proficiency marks were good
2.  -I received awards and decorations
3.  -I had combat service
4.  -My record of promotion showed I was generally a good service member.
5.  -I was close to finishing my tour that it was unfair to give me a bad discharge. 
6.  -I have been a good citizen since discharge
7.  -My ability to serve was impaired by my youth and immaturity
8.  -My ability to serve was impaired because of family problems
9.  -Medical or physical problems I had impaired my ability to serve
10. -My ability to serve was impaired because I was not working in the field I trained for
11. -The punishment I got was to severe compared with todays standards.
12. -The punishment I got as discharge was to harsh-it was much worse than most people got for the same offense
13. -My command abused its authority when it decided to discharge me and decided to give me a bad discharge.
14. -My discharge was improper because the command didn’t follow the discharge regulations (did not sign rights on what I was charged for, never notified of D.R.B, discharge was not a repremand, but use as an example).”

Documentation

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

Employment Reference Letter dated February 20, 2003
Thank You Letter from President J_ M. S_ of Virginia State Firefighter’s Association
Thank You Letter from P_ R_ dated February 27, 2003
Account Report from Dominion Virginia Power dated March 8, 2003
Millennium Cohort Study offer, dated August 8, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	980116 - 980216	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  980217		Date of Discharge:  010510

Length of Service (years, months, days):

	Active:    03  02  24
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  56

Highest Rate:  ACAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (4)	Behavior:  2.50 (4)		OTA:  2.83

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, SSD, NAVY”E”, NUC, MUC

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:

000601:	NJP for violation of UCMJ, Article 86:  UA from 1645, 000429 until 0120, 000430.
	Award:  Correctional Custody for 30 days, forfeiture of $564.00 pay per month for 2 months, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

010207:	NAVDRUGLAB [San Diego, CA], reported Applicant’s urine sample, received 010201, tested positive for [THC].

010405:	NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana.
	Award:  Forfeiture of $691.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

010405:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010405:	Applicant advised of 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.

010410:	Applicant refused drug dependency screening.

010418:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  

010504:	COMCARGRU THREE 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 20010510 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).

Regarding the Applicant’s request to change the characterization of service to uncharacterized or entry level separation, by regulation, only members discharged within the first 180 days of their first enlistment can be given this kind of discharge.  Since the Applicant served in excess of three years, he cannot, by regulations, be given an uncharacterized or entry level separation.  Additionally, concerning the Applicant’s request to change his 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.  

Issues 1 through 5 and 9:  The Board disagrees with the Applicant’s contention that he served the United States well and entitled to an upgrade.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  The Applicant’s service was marred by the award of nonjudicial punishments for unauthorized absence and for drug use.  There is credible evidence in the record that the Applicant used an illegal drug.  Mandatory processing for separation is required for sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  Additionally, there is no evidence in the Applicant’s record to substantiate this claim that medical or physical problems impaired his ability to service.  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.  Relief denied.

Issues 6:  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.  At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty.  Relief not warranted.  

Issues 7, 8 and 10:  While he may feel that his youth, immaturity, family difficulties, and not working in his trained field, were contributing factors, they do 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.  Relief denied.

Issues 11 though 14:  The Applicant’s other than honorable discharge was proper and equitable.  There is no evidence of impropriety, inequity, or procedural irregularities in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  He acknowledged and waived his rights to administrative review.  The Applicant was afforded the appropriate due process during the processing of his case.  An upgrade of the characterization of the Applicant’s service is not warranted.  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 documentation to support any claims of post-service accomplishments or any other evidence related to his 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 31, dated 20 Feb 01, effective 12 Feb 2001 until 15 Jul 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.
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