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Docket No. ND05-01288

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

FOR OFFICIAL USE ONLY

 ex-BUCA, USN
Docket No. ND05-01288

Applicant’s Request

The application for discharge review was received on 20050802.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to General (under honorable conditions) and the Narrative Reason for Separation be changed to “Secretarial Authority.”  The Applicant requests a documentary record discharge review.  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 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 and 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

Issues, as stated

Applicant’s issues, as stated on the application: 

“My discharge was inequitable because it was based on one isolated incident in 2 years 1 month and 11 days of service.  I would like to be eligible to rejoin the military as soon as possible.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19960524 – 19960825		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19960826		Date of Discharge:  19981006

Length of Service (years, months, days):

	Active:    02  01  11  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  19 

Years Contracted:  4 (12 month extension)

Education Level:  11				AFQT:  53

Highest Rate:  BUCN

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):  M16 Expert Rifle, Navy Battle “E” Ribbon, Sea Service Deployment Ribbon.

* Not Available

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events: 

980911:	NAVDRUGLAB, San Diego, CA reported Applicant’s urine sample, received 980904 tested positive for THC.

980915:	NJP for violation of UCMJ, Article 112a:  Wrongful use of marijuana.
Award:  Forfeiture of $519 per month for 2 months ($200 per month suspended for 6 months), restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

980922:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse.

980922:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

980930:	Commanding Officer, U.S. Naval Mobile Construction Battalion FORTY recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “BUCA C_ (Applicant) tested positive for marijuana on a random urinalysis conducted by this command.  BUCA C_ (Applicant) has been at this command for a year and a half, and is a good worker but he requires constant supervision.  Due to his recent appearance at Captain’s Mast for violation of UCMJ, Article 112a, BUCA C_ (Applicant) is no longer considered an asset to this command nor suitable for further service in the Navy. I recommend BUCA C_ (Applicant) be expeditiously discharged from the naval service with an Other than Honorable Discharge.”

981001:	Commander, Naval Base, San Diego authorized the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981006 by reason of misconduct due to drug abuse (A and B) with a service characterization of under other than honorable conditions.  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).
  
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.

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.  An under other than honorable conditions  discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by nonjudicial punishment proceedings for violation of Articles 112a of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant states that he “would like to be eligible to rejoin the military.” 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.

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 additional evidence related to this discharge.  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.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a, wrongful use of controlled substance.

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