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Docket No. ND06-00523

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

FOR OFFICIAL USE ONLY

ex-AKAN, USN
Docket No. ND06-00523

Applicant’s Request

The application for discharge review was received on 20060228.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061214.  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.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 12a, Date Entered AD This Period, should read:  “90  JAN 12,” and Block 12c, Net Active Service This Period, should read:  “02  04  24.”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and/or attached document/letter:

“Request correction on Discahrge in Block 24 on the last DD Form 214.  Request that the type of discharge be upgraded from “UNDER THAN HONORABLE CONDITIONS” to “GENERAL DISCHARGE.  (Please read my attached letter labeled as letter #8.)

Dear Board Members,

My name is C_ L.  S_(Applicant).  I am writing to you in hopes that I may be granted an upgrade on my 1992 Discharge from the United States Navy.
I have a total of 17 years service in the United States Military and I would like to rejoin the ranks of our soldiers and serve my country proudly again.
I have gone to the Army National Guard Unit and requested to reenlist however, I’m not able to because of my “Other Than Honorable Discharge” I received in June 1992.  I received this discharge as a result of a radom urinalysis test in which I tested positive for crystal methamphetamine (speed).
I have no problem accepting the responsibilty and circumstances that followed for doing this and I have kicked myself many times for doing something so stupid.
Although I am a Vietnam Era Veteran, I did not go to Vietnam as my unit the 101st Airborne Division returned just a few months prior to me arriving in 1972.  I was amoung the first of many sailors “on station” in the Indian Ocean onboard the USS Kitty Hawk CV-63, when Iran took our people hostage for 464 days, while President Carter was in office.  I was also on active duty during “Desert Storm”.  I would like to continue my military service now and serve my country again in it’s time of need.
However, to continue into the United States Army National Guard, I will need to have my discharge upgraded to a “General Discharge”.  Please do not confuse the “General Discharge” with the General with Honorable conditions, as the later will not allow me to reenlist into the service.  I need a “General Discharge” as per the recuiters to continue my service goals.
I have enclosed personal character references from people that are trying to help me reach my goal.
I want to thank you for your time and consideration in this matter and eagerly await your response.

Respectfully,
[signed]
C_ L.  S_
(Applicant’s social security number deleted)”

Submitted by Applicant subsequent to submission of application:

“Request that, should the discharge be granted an honorable, the RE-Code be changed as RE-1.  The reason for the request is that I am fervently attempting to join the Army National Guard.  I thank you for your considerations.  My Docket Number is ND06-00523”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Character Reference ltr from J_ E. S_, dtd December 13, 2005
Character Reference ltr from K_ F_, undated
Character Reference ltr from D_ B_, dtd December 27, 2005
Character Reference ltr from B_ J. F_, undated
Character Reference ltr from R_ J. L_, Shipping Supervisor, Finch Pruyn and Company, Incorporated, dtd December 12, 2005
Character Reference ltr from K_ J_, Shipping Supervisor, dtd January 20, 2006
Character Reference ltr from J_ F. D_, Jr., 1LT, TC, United States Army, dtd December 19, 2005
Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 214 (Member 4) covering period February 1, 1982 to January 11, 1990
Applicant’s Honorable Discharge certificate, dtd November 10, 1976 from the Army National Guard
Applicant’s statement, dtd July 7, 2006

PART II - SUMMARY OF SERVICE

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

	Active:   USA	19740613 - 19750612	HON
	Inactive: USAR	19750613 - 19780612	HON
	Active:	USN	19790131 - 19820131	HON
		USN	19820201 - 19900111	HON

Period of Service Under Review:

Date of Enlistment:  19900112		Date of Discharge:  19920605

Length of Service (years, months, days):

	Active:    02  04  24
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  34

Years Contracted:  2 (8-month extension)

Education Level:  11 GED			AFQT:  58

Highest Rate:  AK2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (4)		Behavior:  3.7 (3)		OTA:  3.95

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  3^rd Good Conduct Award Effective 91Jan30, Meritorious Unit Commendation(3), Armed Forces Expeditionary Medal, .38 Cal Pistol Expert, Sea Service Deployment Ribbon(3), Battle “E” Ribbon, Navy Expeditionary Medal, Humanitarian Service Award National Defense Service Medal(2)

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Drug abuse (Use), authority: MILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events: 

900112:	Reenlisted this date for a term of 2 years with an 8-month extension.

910320:	Drug and Alcohol Abuse Report: Amphetamines abuse, ashore off duty.  Unit sweep urinalysis 910220.  Comments:  Petty Officer’s S_(Applicant)’s current predicament came as a surprise to all members of his chain of command.  However, in light of his current situation involving alleged drug use detection via urinalysis, his chain of command believes that his future potential in the Navy would be very limited.  The nature of his profession will not allow for any toleration for drug abuse and abuse.  Awaiting CO’s Mast.

910425:	NJP for violation of UCMJ, Article 112a:
	Specification: On or about 901212, wrongfully use amphetamine/methamphetamine.
	Award:  Forfeiture of $503.00 per month for 2 months (suspended for 6 months), extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

910523:	Medical Evaluation at Branch Medical Clinic, Naval Air Station, North Island by D. J. M_, MC-FS, USNR.  Drug and Alcohol Screening.
	Here because positive urinalysis for methamphetamine.  Denies any regular use, was one-time incident, ingested mistakenly.
	See CAAC eval and past history: heavy drinker in past, tolerance, blackouts, social life centers around ETOH.  After DUI (1986) decided to “control drinking, since then only “drunk”4-times only 6 pk/month” type of drinking without further incidents.
	Command CAAC evaluation and recommendation:  Level III/sep.
	Assessment: Applicant is alcohol dependent.
	Administrative separation.  VA treatment for dependence, if requested by the member prior to discharge, if eligible.

910826:	Message from BUPERS to HSL FOUR ONE North Island, CA.  1.  Ref A has been reviewed and no further action is contemplated.  2.  Action appropriate as SNMs administrative board on 910722 found member did not commit misconduct.

920406:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 920131, tested positive for methamphetamine.

920415:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as other than honorable by reason of misconduct due to drug abuse, as evidenced by positive urinalysis for methamphetamine on 920406.

920415:	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.

920416:	Commanding Officer, HSL FOUR ONE North Island, CA, recommended discharge under honorable conditions (general) by reason of misconduct due to drug abuse.  A random urinalysis was conducted on 920331.  SNM provided a sample which tested positive for methamphetamine/ amphetamine on 920406.  Commanding Officer’s comments:  “This is Petty Officer S_(Applicant)’s second positive urinalysis.  After his initial drug use an administrative board recommended retention, however the command recommended discharge.  BUPERS retained the service member.  He has again been randomly identified as a drug offender.  I therefore recommend a general discharge.”

920429:	Dependency Evaluation at Branch Medical Clinic, NAS North Island, San Diego, CA, Drug and Alcohol Dependency Evaluation.
	Command DAPA evaluation and recommendation:  Admin discharge.
	CAAC evaluation and recommendation:  Admin discharge.
	Toxicology screening/positive urinalysis:  Methamphetamine.
	Assessment: Based on this evaluation, it is my opinion that:
	This member is not a drug/alcohol abuser.
	This member is not drug dependent.
	Recommendation:  Administrative separation.

920525:	BUPERS, directed the Applicant's discharge other than honorable by reason of misconduct due to drug abuse.

920526:	Applicant found physically qualified for separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920605 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).

The Applicant claims, “he has 17 years service in the United States Military and would like to get a discharge upgrade so that he can rejoin the ranks of our soldiers and serve his country proudly again.”  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 2 positive urinalysis test, one nonjudicial punishment proceeding for violation of Article 112a (Wrongful use, possession, etc. of controlled substances) 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.

In addition to a request for discharge upgrade, the Applicant seeks his RE-Code be changed to RE-1.  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.  Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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, possession, etc. of controlled substances). 

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