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NAVY | DRB | 2005_Navy | ND0501210
Original file (ND0501210.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-CSSR, USN
Docket No. ND05-01210

Applicant’s Request
The application for discharge review was received on 20050713. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to entry level separation or uncharacterized. The Applicant requests a personal appearance hearing discharge review before a traveling panel closest to ST. Johnsbury, VT. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in Washington, DC at the Washington Navy Yard. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.


Decision

A documentary discharge review was conducted in Washington, D.C. on 20060209. 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 and reason for 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 was discharged from the Navy for drug use. I would like to change my re entry code to a RE3 so I can enlist in the Army. Since I left Norfolk, VA, I’ve been drug free. I would like to continue my drug free life style in the military. I am willing to do whatever it takes to join. My country needs me to fight. I loved the Navy, and all it took was one bad decision, to watch the life that I loved, shatter before my eyes.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Letter from D_ F_ (Applicant’s mother) dtd August 12, 2005 (2 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20030507 – 20030623               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20030624             Date of Discharge: 20040929

 Length of Service (years, months, days):

         Active: 01 03 06
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              30 days

 Age at Entry: 19

 Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 57

 Highest Rate: CSSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                  Behavior: NA*             OTA: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Global War on Terrorism Service Medal.
* Not Available


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 :

030507:  Enlistment waiver granted for two Chart “C” s (Possession of marijuana (2x)).
040820:  NAVDRUGLAB, JACKSONVILLE, FL message reported Applicant’s urine sample, received on 12 Aug 04 tested positive for methylenedioxymethamphetamine .
040902:  Summary Court-Martial.
         Charge: violation of the UCMJ, Article 112a: (2 specifications) wrongful possession and use of controlled substance.
 Specification 1: On or about 4 Aug 04 wrongfully posses 15 tablets of methylenedioxymethamphetamine with intent to distribute.
Specification 2: On or about 4 Aug 04 wrongfully use methylenedioxymethamphetamine.
         Finding: to Charge and the specification thereunder, guilty.
          Sentence: Confinement for 30 days, forfeiture of $923.00, reduced to E-1.
         CA action 040925: Not found in record.
040902:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct drug abuse.

040902:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
040914:  Commanding Officer, USS SAIPAN (LHA 2), recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: “(1) Culinary Specialist Seaman Recruit A_ W. F_, Jr, was part of an ecstacy drug ring on board USS SAIPAN (LHA 2) that was exposed on 6 August 2004. He was placed in pre-trial confinement on 7 August 2004 due to the severity of the offenses, the fact that the offenses occurred aboard a Naval vessel and pending the outcome of the NCIS investigation. (2) Upon receipt of the full NCIS investigation I made the decision to take him to a Summary Court-Martial. Seaman Recruit F_ was served with his charges and given the rights afforded to him regarding a Summary Court-Martial on 2 September 2004. He accepted the Summary Court-Martial, where he pled and was found guilty of wrongful possession of a controlled substance and wrongful use of a controlled substance. (3) Seaman Recruit F_ was fully advised of his rights for administrative separation processing for Misconduct due to Drug Abuse on 2 September 2004 and waived his Administrative Board. (4) Seaman Recruit F_’s misconduct in wrongfully using and possessing ecstacy with the intent to distribute is detrimental to good order and discipline and simply cannot be tolerated. Moreover, his conduct is a clear departure from the behavior expected of a member of the Naval service and is inconsistent with the Navy’s Core Values. I strongly recommend an Other Than Honorable discharge.”

040921:  Commander, Amphibious Group TWO authorized the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040929 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 requests that his characterization of service be changed to Entry Level Separation or Uncharacterized. The NDRB advises the applicant that he is not eligible for this type of discharge. By regulation, members are eligible for an uncharacterized or entry-level separation characterization of service, if they are discharged within the first 180 days of enlistment, unless there were unusual circumstances regarding a service member’s performance or conduct, which would merit another characterization. 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 a summary court-martial conviction for violations of Article 112a of the UCMJ : (2 specifications) wrongful possession and use of controlled substance . Violations of Article 112a are considered serious offenses. 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. The Board further advises the Applicant that his 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. 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 requests a change to his “RE” code so he may 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 following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. The Applicant provided one letter of recommendation from his mother as documentation of his post-service. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. Therefore, no relief will be granted.

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 28 April 2005, 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 article 112a of the UCMJ (wrongful possession and use of 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 .

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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