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Docket No. ND04-00267

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

ex-ADAN, USN
Docket No. ND04-00267

Applicant’s Request

The application for discharge review was received on 20031203.  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 review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20040728.  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.  “As I stated in my court-martial, I committed the Misconduct and must suffer the consequences.  At the time of the Misconduct in question, I was home on emergency leave because my father had passed away, but did not make the situation known to the legal officer because I did not want any special treatment.  Therefore, I am not applying for an upgrade because I thought my discharge was inadequate but for my own foreclosure, and the possibility of being able to volunteer for the armed services again.”

2.  “In my own defense, I made a mistake.  Something everyone has done before in their lives, but sadly, most can not say it won’t happen again, but with this particular mistake, I feel I am able to make such statement.  This was a split second of false judgment that sadly cost me a lifelong dream as a career sailor.  The only thing I ever wanted to do was give back to a country that has already given me so much.  My only wish is for you to consider this when reviewing my records for an upgrade.”

Documentation

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

Letter from ATCS(AW) T_ D. S_, USN
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)		990726 - 000621	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  000622		Date of Discharge:  020528

Length of Service (years, months, days):

	Active:    01  11  07
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  56

Highest Rate:  ADAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

*No Marks Found in Service Record
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:

020312:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 020305, tested positive for THC.

020412:	SCM for violation of UCMJ, Article 112A: Wrongful use, possession, etc. of controlled substance.
	Award: Forfeiture of 2/3 pay per month for 1 month, reduction to E-1, confinement for 30 days.  No indication of appeal in the record.

020412:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020412:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

020509:	Commander, Naval Air Force, U.S. Atlantic Fleet, Norfolk, VA directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

020709:	Commanding Officer recommended 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 20020528 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 Applicant fully admits to his misconduct leading to his discharge but states that he desires an upgrade for “the possibility of being able to volunteer for the armed services again.”  The NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any of the other Armed Forces.  Furthermore, 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 reenlistment through a recruiter.

Issue 2:  The Applicant states that “[he] made a mistake” and that his decision to commit misconduct was based upon a “split second of false judgment that sadly cost [him] a lifelong dream as a career sailor.”  There is nothing in the record demonstrating the Applicant was not responsible for his actions, that he was treated unfairly or that he should not be held accountable for his actions.  Furthermore, The NDRB recognizes that serving in the Navy is very challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most sailors serve honorably and well and therefore earn honorable discharges.  In fairness to those sailors, commanders and separation authorities are tasked to ensure that undeserving sailors receive no higher characterization than is due.  While the NDRB respects the fact that the applicant tried, his service is equitably characterized as being performed under other than honorable conditions. Relief is not warranted.

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 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.