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NAVY | DRB | 2005_Navy | ND0501218
Original file (ND0501218.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND05-01218

Applicant’s Request
The application for discharge review was received on 20050714. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “RE Code”. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by American Legion.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060414. After a thorough review of the available 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 attached document/letter:

“To Whom it May Concern:

My name is J_ S_ (Applicant) and I am respectfully requesting permission to have my reenlistment code changed. I joined the Navy back in 1996 and if I might add, I did well for myself. I enjoyed the military way of life. I was 18 years old living it up, until I started hanging out with a rough crowd. After only 11 months, I was discharged with a n OTH for the use of marijuana. I do not blame anyone but myself. I wish now I would have seeked help from a councilor or a superior officer. It’s not that I had a drug problem, but the help would have saved my career and I would be still be serving my country. I was young, immature, and knew it all. Now I realize I knew nothing at all. I have regretted it every day since. I have been clean ever since and I hardly ever drink. I have matured over the years. I have been married for the last 2 years and have 2 kids. I have done just about every kind of construction work there is and even done the commercial diving for a little while. In 2003 I attended the commercial dive school in Houston Texas, graduating with a 91% grade average. While attending school, I also completed the divers medic course. I am a hard worker and I give 110% all the time. I work well with others as a team. I show up to work on time and never complain. I can be a leader or a follower, which ever is needed. I follow instructions. I like to set my goals high and usually can accomplish what I set. I can do just about whatever I set my mind to. I always have a job, but I haven’t been satisfied since I have been out of the military. Honestly, I want to be a Marine. I believe I will make an excellent Marine. I would enjoy serving my country again. I am good at whatever I set my mind to and my mind is on being a Marine. I sincerely want to serve my country as a Marine and make up for the mistake I made in the Navy. It wouldn’t just be a career, it would be a way of life. I am a soldier.”

Sincerely.
[signed] J_ S_ (Applicant)
Representative submitted no issues.






Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Character Reference ltr from A_ S_ (Applicant’s Wife), dtd June 15, 2005
Character Reference ltr from B_ P_ (Applicant’s Grandmother) dtd June 10, 2005
Employment Reference ltr from R_ L. S_, D.D.S dtd June 1, 2005
USN Logo
Service/Medical Documents (53 pgs)
Academic Achievement Record from Alvord High School
Academic Transcript from the Oceana Corporation Ultimate Diver Training
Module Test Grade Report from the Prime Time Training Inc (2 pgs)
Divers Medic-Advance Training Curriculum from Prime Time Training Inc (2 pgs)
Primary Care and Preventive Medicine Extension Training Test Results from Prime Time Training Inc
Ultimate Diver Training Diploma from the Oceans Corporation dtd August 1, 2003
Advanced Diver Medic Certificate
Certificate of Training (Emergency Medical Technician-Intermediate) dtd March 30, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19960916 – 19960918               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19960919             Date of Discharge: 19970828

 Length of Service (years, months, days):

         Active: 00 11 10 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 9 days
         Confinement:              3 days

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 32

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.0 (1)              Behavior: 2.0 (1)                 OTA: 3 .00

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Battle “E”, 9MM Expert Pistol Shot (Marksman).


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

UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT, authority: MILPERSMAN, Article 3630620 .
Chronological Listing of Significant Service Events :

970730:  Applicant to unauthorized absence from USS GETTYBURG at Mayport, FL at 0500 on 970730.
970808:  Applicant from unauthorized absence at 1605 on 970808 (9 days/surrendered).
970815:  NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence.
         Violation of UCMJ, Article 92: (2 specs): Failure to obey.
 Violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
         Award: Forfeiture of $450 per month for 2 months, confinement Bread and Water for 3 days. No indication of appeal in the record.
970828:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse, per MILPERSMAN 3630620.

970929:  Drug and Alcohol Abuse Report: Marijuana Abuse as a result of a random urinalysis, recommended for separation not via VA Hospital.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19970828 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 Board presumed regularity in the conduct of governmental affairs (E).

There is credible evidence in the record that the Applicant used illegal drugs. Mandatory processing for separation is required for sailors who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

 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. T he Applicant’s service was marred by nonjudicial punishment proceedings for violations of Articles 86, 92 and 112a 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.
The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). However, there is no law or regulation, which provides that an unfavorable discharge, may be upgraded based solely on good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. 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, is considered. The Applicant provided one letter of recommendation from his wife, one letter of recommendation from his grandmother, one letter of recommendation from an employer, and academic transcripts verifying diver training 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 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 requested a change to his reenlistment code. 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 requested that the Narrative Reason for Separation be changed to “RE Code.” The Applicant’s misconduct, warranting separation for misconduct due drug abuse, is clearly documented in the service record. The separation authority determined that a misconduct most clearly described the reason for discharge. Since no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged, a change would be inappropriate.

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), Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL 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 the UCMJ, Article 92, failure to obey; and Article 112a, wrongful use of a 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 .

E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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