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Docket No. ND05-01438

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

FOR OFFICIAL USE ONLY

 ex-ABFAR, USN
Docket No. ND05-01438

Applicant’s Request

The application for discharge review was received on 20050830.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  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 20060512.  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 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: 

“I A_ S. G_ (Applicant) am respectfully requesting a change to my discharge to a Honorable due to the fact that I would greatly like to enlist back into the military I would like to go ARMY to full fill my duties as an American.  I am married now and have 2 children.  I was young and made bad decisions and now I realize how much it affected me and I would like fix what I can for the future of my family and my country.”

Documentation

Only the service and medical record were reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20000727 – 20000815		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000816		Date of Discharge:  20020930

Length of Service (years, months, days):

	Active:    01  11  03  (Does not include lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  77 days
	Confinement:		  45 days

Age at Entry:  20

Years Contracted:  4 

Education Level: (Not contained in available record) 			AFQT:  40

Highest Rate:  ABFAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.5 (2)		Behavior:  1.0 (2)			OTA:  1.91 

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

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: 

010112:	Applicant to unauthorized absence at 0600 on 010112.

010312:	Applicant from unauthorized absence at 1150 on 010312 (59 days/surrendered).

010314:	Summary Court-Martial.
	Charge:  violation of the UCMJ, Article 86:
	Specification: Unauthorized absence from 01Jan13 – 01Mar12
	Finding: to Charge and the specification thereunder, guilty.
	Sentence: Forfeiture of $521.00 pay per month for 1 month, and confinement for 15 days.
	CA action 010323:  Sentence approved and ordered executed.

010823:	Applicant to unauthorized absence at 0600 on 010823.

010901:	Applicant from unauthorized absence at 0600 on 010901 (9 days/surrendered).

010906:	Applicant to unauthorized absence at 0600 on 010906.

010911:	Applicant from unauthorized absence at 1150 on 010911 (9 days/surrendered).

010926:	NJP for violation of UCMJ, Article 86 (3 Specs):
	Award:  Forfeiture of $521.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

010926:	Retention Warning:  Advised of deficiency (NJP on 26 Sept. 2001, for violation of the UCMJ, Art 86 UA (3 Specs).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

011005:	NJP for violation of UCMJ, Article 92:
	Specification:  Violation of general order or regulation (possessing alcoholic beverage).
	Award:  Confinement to 3 days of bread and water.

020403:	Retention Warning:  Advised of deficiency (Violation of the UCMJ, Article 134 – knowingly receiving stolen property.  On 16 March 2002, you knowingly received stolen property from the dental department, to wit: lidocaine vials.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020705:	Applicant to unauthorized absence at 1400 on 020717.

020717:	Applicant from unauthorized absence at 0600 on 020717 (12 days/surrendered).

020718:	Summary Court-Martial.
	Charge:  violation of the UCMJ, Article 86 and 112a:
	Specification: Unauthorized absence and Wrongful use of a controlled substance.
	Finding: to Charge and the specification thereunder, guilty.
	Sentence: Forfeiture of $770.00 pay per month for 1 month, and confinement for 30 days.
	CA action 010718:  Sentence approved and ordered executed.

020930:	Form DD214 discharging the Applicant from military service.

Service Record did not contain the Administrative Discharge package. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020930 by reason of misconduct due to drug abuse (A and B) with a service characterization under other than honorable conditions.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence.  There is no evidence in the record, nor has the Applicant produced any evidence, that the discharge was not proper and equitable.  The Board presumed the Applicant was notified of intended recommendation for discharge by reason of misconduct due to drug abuse, advised of his rights, provided the opportunity to consult with counsel, and elected or waived each right.  The Board presumed that the Commanding Officer, USS Bataan, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Relief denied.

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.

The Applicant contends his disciplinary problems were the result of his youth.  The NDRB recognizes that serving in the U.S. Navy is 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 members of the Navy serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

The Applicant states that he is requesting an upgrade of his discharge so he can enlist in the Army. 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), re-issued October 2002, effective 22 Aug 2002 until Present, 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 86 – unauthorized absence, Article 92 – failure to obey a general order, Article 134 – receiving stolen property, and Article 112a – wrongful use of a 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.

E.  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