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Docket No. ND04-01257

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

ex-SR, USN
Docket No. ND04-01257

Applicant’s Request

The application for discharge review was received on 20040806.  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 20041222.  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

Applicant’s issues, as stated on the application:

1.  “I WOULD LIKE TO CHANGE MR REENLISTMENT CODE FROM RE 4 TO RE 3 AS SO I MAY HAVE A CHANCE IN THE ARMY  I WOULD LIKE TO SERVE MY COUNTRY AGAIN WITH NO MISTAKES.”

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)	010227 - 010306	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  010307		Date of Discharge:  020703

Length of Service (years, months, days):

	Active:    01  03  12
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  10			AFQT:  63

Highest Rate:  MSSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  1.00 (1)		OTA:  2.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  15

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:

020410:	Applicant on unauthorized absence from aboard the USS UNDERWOOD (FFG 36) at Mayport, FL as of 0700, 020410.

020424:	Applicant surrendered on board the USS UNDERWOOD at 2340, 020424, charged lost time.

020506:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 020501, tested positive for THC.

020508:	NJP for violation of UCMJ, Article 86:  Absence without leave.
Award:  Forfeiture of $511.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1 (suspended for six months).  No indication of appeal in the record.

020518:	Retention Warning:  Advised of deficiency (UCMJ Article 86, absence without leave), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020520:	Vacated Commanding Officer’s NJP from 020508.

020520:	NJP for violation of UCMJ, Article 112a (1 Spec):  Wrongfully use of a controlled substance.
Specification 1:  In that MSSA S_ (Applicant), W_ O_ D_, USN, did, while assigned, on board USS UNDERWOOD, located at Naval Station Mayport, FL, or about 020412, wrongfully use marijuana a Schedule I controlled substance.
	Award:  Restriction and extra duty for 45 days, vacated previous NJP, reduction to E-1.  No indication of appeal in the record.

020522:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible is under other than honorable conditions by reason of misconduct due to drug abuse and pattern of misconduct.

020522:	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.

020523:	Commanding Officer, USS UNDERWOOD (FFG-36), recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and pattern of misconduct.  Commanding Officer’s comments (verbatim):  MSSR S_ (Applicant)’s performance on board has been average.  His recent and total disregard for Navy regulations and standards has made him lose the trust of his chain of command.  Based on the seriousness of misconduct and the Navy’s zero tolerance on drug abuse, I most strongly recommend that S_ (Applicant) be separated from the Naval Service and that the characterization of his separation be Other Than Honorable (OTH).

020524:	Commander, Group SIX authorized Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020601:	NJP for violation of UCMJ, Article 91:  Insubordinate conduct toward a Petty Officer on or about 020529.
Award:  Oral Reprimand.

020603:	Applicant refused Level III Treatment prior to separation from the naval service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020703 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 Applicant’s service record is marred by award of nonjudicial punishment on three occasions for violating the UCMJ, Articles 86, 91 and 112a thus substantiating the misconduct.  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.

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), 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review 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.