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Docket No. ND03-01375

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

ex-MS3, USN
Docket No. ND03-01375

Applicant’s Request

The application for discharge review was received on 20030813.  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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040617.  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.  “My discharge was mainly based on a drug message saying that I abused drugs.  I know that I do not use drugs but I felt I had no choice but to accept the discharge.  The only problem I had dealt was with alcohol and I am still attending my AA meetings.  The reason for my request is that I still love the Navy.  I’m a military man and always will be.  I know I’ve made mistakes and as of now I’m paying for it.  There’s I would like more, to serve my country again.  This is why I am making this request.  I’ve assisted in many UNAREPS, associated well with my fellow sailors and those senior to me.  I’ve respected my chain of command.  All I want to do is serve my country again.  If given that chance I will give a 100% percent in all that I do if I’m able to serve my country again in the Navy.  I know the Navy has a zero tolerance for drugs, but the amount that came back in the drug message should really be questioned.  I’am no drug addict I have not and will not use cocaine.  I wish I could prove it but all I have for now is my word.  I also received my good conduct but it’s not on my DD214.  But it is in my service records.  All I’m asking is a chance to serve my country again.”

Documentation

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

Applicant’s DD Form 214 (member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  Unknown
	Active:   None

Period of Service Under Review:

Date of Enlistment:  991228		Date of Discharge:  030204

Length of Service (years, months, days):

	Active:    02  10  27
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  54

Highest Rate:  MS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)	Behavior:  3.00 (1)		OTA:  4.00

Military Decorations:  None

Unit/Campaign/Service Awards:  SSR, AFEM, NDSM

Days of Unauthorized Absence:  99

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:

010617:	Unauthorized absence from USS SUPPLY at 1100 on 010615.

010824:	Surrendered to military authority at 1310 on 010824. (80 days)

011004:	NJP for violation of UCMJ.  No further information found in service record.
020117:	Unauthorized absence at 0600 on 020117.

020121:	Surrendered to military authority at 0700 on 020121. (4 days)

020131:	Unauthorized absence from USS KEARSARGE at 0600 on 020131.

020208:	Surrendered to military authority at 0600 on 020207. (8 days)

020219:	Unauthorized absence from USS KEARSARGE at 0600 on 020219.

020226:	Surrendered to military authority at 0600 on 020226. (7 days)

Applicant’s discharge package missing from service record

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030204 under other than honorable conditions for misconduct due to drug abuse (A).  In the absence of a discharge package, the Board presumed regularity in the conduct of governmental affairs (B)and, after a thorough review of the available 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:  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.  The Applicant’s allegation, that the amount that came back in the drug message should really be questioned, does not refute the presumption of regularity in this case.  The applicant’s service record is further marred by unauthorized absence on four occasions totaling ninety-nine days.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief 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, 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.  

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 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), re-issued October 2002, effective 22 Aug 2002 until Present, 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 documì¥Á
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°°°Äv!v!v!8®!is 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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