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

FOR OFFICIAL USE ONLY

 ex-GSMFA, USN
Docket No. ND05-01257

Applicant’s Request

The application for discharge review was received on 20050714.  The Applicant requested a record review and that his characterization of service be changed to general (under honorable conditions) and the narrative reason for separation be changed to “Early Release”.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060406.  After a thorough review of all available 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 voted unanimously that the characterization of service and the reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION
Applicant’s issues, as stated on the application: 

“MY DISCHARGE WAS INEQUITABLE BECAUSE IT WAS BASED ON ONE ISOLATED INCIDENT IN TWO YEARS OF SERVICE WITH NO OTHER ADVERSE ACTION.  I MADE IT CLEAR THAT I WISHED TO REMAIN IN THE US NAVY, SINCE SEPARATION I HAVE LED A PRODUCTIVE LIFE ATTAINDING TRADE SCHOOL, AND BEING EMPLOYED, GIVEN THE CHANCE I WOULD REINLIST IN THE MILITARY.”

Documentation

The Applicant submitted the following documentation to be considered in addition to his service and medical records:

Applicant’s DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19950228 – 19950410		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19950411		Date of Discharge:  19970415

Length of Service (years, months, days):

	Active:    02 00 05  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  20

Years Contracted:  4 

Education Level:  12				AFQT:  46

Highest Rate:  GSMFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*		Behavior:  NA*	OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal.

* Not Available

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events: 

970102:	NJP for a violation of the UCMJ, Article 112a (wrongful use of a controlled substance, marijuana).
Award:  Forfeiture of $510 per month for 2 months, reduction to E-2, 45 days extra duties, and 45 days restriction.  No indication of appeal in the record.

970415:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse, per MILPERSMAN 3630620. 

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970415 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions.  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  The Applicant’s service record documented nonjudicial punishment for a violation of the UCMJ, Article 112a (wrongful use of a controlled substance).  Separations under these conditions generally result in an under other than honorable conditions characterization of service.  The Board could discern no impropriety or inequity.  Relief denied.

Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the naval service.  There are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis for administrative discharge and the characterization of a Sailor’s overall service.  Processing for separation is mandatory for sailors who abuse illegal drugs, the misconduct for which that Applicant was discharged.   The evidence of record clearly documents the Applicant’s blatant disregard for authority and does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s service prior to his drug use does not excuse him of responsibility for the misconduct that resulted in his discharge.  Relief denied.

The Applicant requested that his narrative reason for separation be changed to “Early Release”.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  For the edification of the Applicant, the Naval Military Personnel Manual does not permit “Early Release” as an authorized narrative reason for separation.  “Misconduct” is the appropriate narrative reason for use, possession, distribution, or manufacture of a controlled substance as directed by the Naval Military Personnel Manual.  No other narrative reason for separation could more clearly describe why the Applicant was discharged.  To change the narrative reason for separation would be inappropriate.  Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  This issue is without merit, relief denied.

There is no law or regulation, which provides that an unfavorable discharge may be upgraded based on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include evidence of a drug free life, educational documents, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Applicant’s unsubstantiated claims of leading a productive life, full-time employment, and attending trade school were considered to be insufficient to mitigate his misconduct while in the Naval service.  Relief denied.  

In the absence of a complete service record, the Board presumed regularity of governmental affairs.  The Board presumed that the Applicant’s discharge was conducted in accordance with that described in reference “A”.  The record does document the Applicant’s nonjudicial punishment for a violation of the UCMJ, Article 112a.  If the Applicant feels his discharge was administratively flawed he bears the burden of establishing his issues through the presentation of substantial and credible evidence.

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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL 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 V, Para 502, Propriety.

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

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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