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NAVY | DRB | 2003_Navy | ND03-00088
Original file (ND03-00088.rtf) Auto-classification: Denied


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

ex-ITSN, USN
Docket No. ND03-00088

Applicant’s Request
The application for discharge review, received 021017, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Convenience of the Government, Reenlistment Code changed RE-3. The applicant requested 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 20030926. 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 and the reason for discharge was discovered by the NDRB. The Board’s vote was unanimous that the character and the reason for discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. My discharge was based on only one offense. I have had an exemplary Post-service record.

2. I received awards, decorations, and letters of recommendation.

3. My average conduct and efficiency ratings/behavior and proficiency marks were good. My records will also show that I was generally a good service member.

4. I was so close to finishing my tour that it was unfair to give me a bad discharge.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Letter of Recommendation from C--R----undated
Letter of Recommendation from M--G----undated
Letter of Recommendation from M--MC--undated
Letter of Recommendation from M--S---dated July 8, 2002
Letter of Recommendation from C--D-P- undated
Applicant listed 3 documents on DD Form 293, Professional Achievement Award, Combat Systems Certified Graduate/Jobs, Passport Certificate of Completion (civil jobs) that were not included with DD Form 293

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR:           19950807 – 19950817      To report active duty
         Active: USNR              19950818 – 19950825      ELS/EE–Drug Abuse
         Inactive: USNR (DEP)     19990728 - 19990811               COG (To enlist USN)

 Period of Service Under Review :
Date of Enlistment: 19990812             Date of Discharge: 20010401

 Length of Service (years, months, days):

         Active: 01 07 20
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

 Education Level: 12                        AFQT: 42

 Highest Rate: ITSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA*

 Military Decorations: None

 Unit/Campaign/Service Awards: Battle “E” Ribbon

 Days of Unauthorized Absence: None

* No Marks Available
 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

010315:  NAVDRUGLAB, report, positive for Marijuana.

 010320:  NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substance. Marijuana.
         Award: Forfeiture of $584.55 per month for 2 month(s), and extra duty for 45 days, (suspended) reduction to ITSA. Restriction for 45 days (suspended). No indication of appeal in the record.
010321:  Medical evaluation for drug abuse found the applicant to be drug dependent. Offer of VA rehabilitative treatment declined.
010401:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to drug abuse as evidenced by positive urinalysis for drugs.
010401:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights used to support the basis for the separation.
010401:  Commanding Officer directed discharge of the applicant with a general (under honorable conditions) by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010401 with a general (under honorable conditions) for misconduct due to drug abuse (use) (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. The Applicant states his discharge was based on only one offense and he has an exemplary post-service record.

The Applicant provided no evidence to support his claim of having an exemplary post-service record, however, according to Navy regulations drug abuse requires mandatory processing for separation. The summary of service clearly documents that misconduct due to drug abuse, was the reason the Applicant was discharged. 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 based on this issue is not warranted.
Issue 2. The Applicant states he received awards, decorations, and letters of recommendation.

The Applicant’s awards, and decorations were in recognition of his significant, positive contributions. His discharge was based on the significant and serious violation of the UCMJ. The letters of recommendation were insufficient to warrant an upgrade to the Applicant’s discharge. The discharge was proper and equitable. Relief denied.

Issue 3. The Applicant states his performance and behavior marks were good and his record shows he was generally a good service member.

There were no marks found in the Applicant’s service record. Regardless, the Applicant’s performance and behavior marks would not have mitigated his misconduct and therefore would not have prevented his misconduct discharge. Drug abuse requires mandatory processing for separation. The discharge was proper and equitable. Relief denied.

Issue 4. The Applicant states he was close to finishing his tour and it was unfair to give him a bad discharge.

The Applicant was not given a bad discharge when close to finishing his tour, he earned it by violating UCMJ, Article 112A. The discharge was proper and equitable. 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. 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. However, only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The following is provided for the edification of the Applicant. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No errors or inequities were discovered in the execution of the Applicant’s discharge. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides that an unfavorable discharge may be upgraded, based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant's performance and conduct during the period of service under review can be considered. Examples of documentation to provide the Board include proof of educational pursuits, verifiable employment record(s), documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle. At this time, the Applicant has not provided sufficient documentation for the Board to consider. Therefore, no relief will be granted.
He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments 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 31, dated 20 Feb 01, effective 12 Feb 2001 until 15 Jul 2001, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 " afls14.jag.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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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