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Docket No. ND04-00105

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

ex-SR, USN
Docket No. ND04-00105

Applicant’s Request

The application for discharge review was received on 20031022.  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 20040715.  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 believe and feel that my OTH, discharge should be upgraded to a general under honorable conditions, because a period of 5-6 years has passed since my discharge; I no longer have a drug problem which was the reason I was discharge and furthermore and most importantly I now wish to re-enlist in the Military; to have a lifelong career in the Military and feel that I have reach Maturity level at age of 25 that I didn’t have at the age of 19 when I was discharged and I can not re-enlist with an OTH status.  Thank you      J_ S_ B_ (Applicant).”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	970428 - 970603	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  970604		Date of Discharge:  980306

Length of Service (years, months, days):

	Active:    00  09  03	[Does not exclude days lost]
	Inactive:  None

Age at Entry:  19		Years Contracted:  4

Education Level:  12		AFQT:  71

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)	Behavior:  1.00 (1)		OTA:  1.20

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  20

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:

971215:	Applicant to unauthorized absence.

980105:	Applicant from unauthorized absence.

980107:	Mental Health Department letter for recommendation for administrative separation dated 980107.  The DSM IV diagnoses were Axis I: Occupational problems, Axis II: Personality disorder, not otherwise specified with passive aggressive features.  Applicant will continue to receive outpatient services in MHC pending any administrative action.

980114:	NAVDRUGLAB, Great Lakes, IL, reported Applicant’s urine sample, received 980112, tested positive for THC.

980115:	Drug and Alcohol Abuse Report: Marijuana abuse, 1-3 times per week ashore-off duty.  Unit sweep urinalysis 980106.  Commanding Officer recommends separation and separate from service not via VA hospital.

980128:	NJP for violation of UCMJ, Article 86:  Absence from unit, organization, or place of duty on 971215 and returned on 980105, violation of UCMJ, Article 112a:  Wrongful use of a controlled substance on 980105.
	Award:  Forfeiture of $463 per month for 2 month(s), restriction and extra duty for 45 days.  No indication of appeal in the record.

980205:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by drug abuse as by all drug incidents in your current enlistment and for suffering from a severe personality disorder.

980205:	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.

980223:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments:  On 980112, SR B_ (Applicant) tested positive for Marijuana in violation of Article 112a of the UCMJ (Wrongful use of a controlled substance).  On 980117, SR B_ (Applicant) was evaluated by the Psychiatry Department, Naval Ambulatory Care Center, Groton, Connecticut, and diagnosed as suffering from a severe personality disorder with destructive behavior.  As indicated by enclosure (8) [Copy of Psychiatric Evaluation of 980117], he is considered a potential danger to himself.  His conduct is detrimental to good order and discipline in the Naval service.  Therefore, in accordance with reference (a) and (b) [MILPERSMAN 3630620 and MILPERSMAN 3620225], I recommend that he be separated from the Naval service with a discharge characterized as other than honorable.

980225:	COMSUBGRU TWO 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 19980306 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.   There is credible evidence in the record that the Applicant used illegal drugs.  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 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.  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 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.  At this time, the Applicant has not provided any documentation for the Board to consider an upgrade.  Relief denied.

Concerning reenlistment, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps.  Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054..  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a 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), Change 18, effective 12 Dec 97 to 19 May 99, 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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