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NAVY | DRB | 2004_Navy | ND04-00219
Original file (ND04-00219.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND04-00219

Applicant’s Request
The application for discharge review was received on 20031119. The Applicant requests the 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 list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20040728. 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/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1) My discharge was inequitable because it was based on one isolated, though serious incident in approximately 19 months of service with no other adverse action.

2) I received captain’s mast, lost money and rank; I feel I paid for my mistake and discharge and or type was unfair would like to re-enlist

3) Evaluation report shows my military service was progressing, this one serious incident should not have ended my service and prevented future service.

4) It is on my evaluation I had potential, I was frustrated by not being given adv’ schooling and came back late from leave which I am sorry. Maybe Article 15 and rehab could have been the punishment I deserved not this discharge.

5) My rater and senior rater didn’t sign my Article 15 discharge evaluation or counsel me. Discharge by new CMDR making me an example.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Evaluation Report and Counseling Record, dated July 30, 2002
Evaluation Report and Counseling Record, dated February 13, 2003
Letter from Applicant’s father, undated
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)              010516 - 010719  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 010720               Date of Discharge: 030213

 Length of Service (years, months, days):

         Active: 01 06 24
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 32

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (2)    Behavior: 2.50 (2)                OTA: 3.02

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

030113:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 030108, tested positive for THC.

030123:  NJP for violation of UCMJ, Article 112A: Wrongful use, possession, etc. of controlled substance, violation of UCMJ, Article 86: Absence without leave.
         Award: Forfeiture of $575 per month for 2 months, reduction to AR . No indication of appeal in the record.
030124:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
030124:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
030131:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

030212:  Commander, Naval Air Force, U.S. Pacific Fleet, San Diego, CA directed the Applicant's discharge under other than 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 20030213 under other than honorable conditions for misconduct due to drug abuse (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).

Issues 1 and 2, respectively: Applicant contends his discharge was based on one isolated incident of otherwise honorable service. Applicant further contends his characterization of discharge was unfair because it served as additional punishment of his misconduct. 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 record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated. Drug abuse warranted processing for separation, normally under other than honorable conditions. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable. Relief denied.

In regard to Applicant’s desire to re-enlist, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any of the other Armed Forces. Furthermore, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps. Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for reenlistment through a recruiter.

Issue 3, 4, and 5: Applicant argues his record showed potential for further service and thus he should not have been discharged. Applicant further argues he was made an example of by his command. The NDRB is tasked with reviewing an Applicant’s discharge solely on the basis of propriety and equity. So long as a discharge meets the accepted standards of propriety and equity of the naval service, relief is inappropriate. Applicant’s claims are generally unsupported by the record before the Board. As such, relief is therefore denied.

 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 . 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. 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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