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NAVY | DRB | 2004_Navy | ND04-01303
Original file (ND04-01303.rtf) Auto-classification: Denied


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

ex-DR, USN
Docket No. ND04-01303

Applicant’s Request
The application for discharge review was received on 20040818. The Applicant requests the 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. 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 in one isolated incident in 12 months of service with no other adverse action, and without taking into consideration that I was going through a very tuff time. My baby’s mother left me for some gangster she met in east LA and she took my daughter with her. I could not stand the fact that my daughter was going to be brought up by some gangster. I seeked help but the people at Navy legal didn’t know what to do, so I gave up. I gave in to parties filled with alcohol, it wasn’t long after someone offered me a marijuana joint. The next thing I know is I am getting discharged out of the Navy. The military thaught me a lot of things and I am grate full for that but I’d really like another chance to prove myself to my country.”
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)     010330 - 010403  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 010404               Date of Discharge: 020524

 Length of Service (years, months, days):

         Active: 01 01 21
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4 (12 month extension)

 Education Level: 12                        AFQT: 52

 Highest Rate: DA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF
[No marks found in service record]

 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 :

020422:  NAVDRUGLAB GREAT LAKES reports Applicant’s urine sample received 020417 tested positive for THC.
020503:  NJP for violation of UCMJ, Article 112a: Wrongful use of THC. Award: Forfeiture of $552 per month for 2 month(s), restriction and extra duty for 45 days, RIR. No indication of appeal in the record.

020514:  Medical evaluation for drug abuse found the Applicant not drug dependent.
020503:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive urinalysis and admission in captain’s mast.
020503:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
020507:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

020507:  CO, NTC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

020513:  Applicant declines treatment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020524 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).

Issue 1. The Applicant states his discharge was based on one isolated incident in “12 months.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. 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. 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 consider his discharge proper and equitable. Relief denied.

The Applicant contends that his problems in the Navy can be attributed to his “baby’s mother [leaving him] for a gangster.” While he may feel that his family problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Regarding reenlistment, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces. The NDRB is not authorized to change reenlistment codes. Reenlistment policy of the naval service or 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 enlistment through a recruiter.

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. 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 33, effective 16 Jul 2001 until 21 Aug 2002, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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

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