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NAVY | DRB | 2005_Navy | ND0501248
Original file (ND0501248.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. ND05-01248

Applicant’s Request
The application for discharge review was received on 20050719. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to discharge to Entry Level separation or uncharacterized. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060302. 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:

A)“I would like to start off by saying that I made a hole mistake that I regret Every Day. I am so sorry for the lack of discipline and honor I showed during my short time spent with the United States Navy. When I joined 4 years ago I was just out of High School, scared and immature. I was not thinking that I was about to ruin the rest of my life.
Since my separations date, I have been thinking and trying to find a way or a loop whole so I can get back into the military. The mistake I made is unfaultable but I just need a second chance. I was in the Navy less then 180 days. I guess this is the only way I might be able to re-enlist. I was hoping you might be able to help me out and upgrade my other than honorable discharge to an entry level separation discharge. I know it is asking a lot from you but I have to show my self and my country that I can do it. I want to be the best of the best. My dad always says If there is a will; there is a way. Please Help!

(SSN)

[signed] C_ K. M_ (Applicant).”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Ltr from Applicant, dtd July 05, 2005
         

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR            20010421 – 20010523               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20010524             Date of Discharge: 20011030

 Length of Service (years, months, days):

         Active: 00 05 06 (Does not include lost time.)
         Inactive: None

 Time Lost During This Period (days):

         Unauthorized absence: 75 days
         Confinement:              None

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 39

 Highest Rate: SR

 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): None

* 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 :

010419:  Applicant acknowledged the United States Navy Illicit Behavior Screening Certificate.

 010628:  Applicant to unauthorized absence at 0100 on 010628.

 010911:  Applicant from unauthorized absence at 1315 on 010911 (75 days/surrendered).
010917:  NAVDRUGLAB, Great Lakes, IL, reported Applicant’s urine sample, received 010913, tested positive for THC.

 011010:  NJP for violation of UCMJ, Article 86:
         Specification: In that SR C_ K. M_ (Applicant) U. S. Navy, Recruit Training Command, Great Lakes, Illinois, on active duty, did, on or about 28 June 2001, without authority, absent himself from his organization, to wit: Recruit Training Command, located at Great Lakes, Illinois, and did remain so absent until on or about 11 September 2001.
         Violation of UCMJ, Article 112a:
 Specification: In that C_ K. M_ (Applicant), U. S. Navy, Recruit Training Command, Great Lakes, Illinois, on active duty, did, on or about, 11 September 2001, wrongfully use marijuana.
          Award: Forfeiture of $245.00 pay per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
011017:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidence by violation of UCMJ, Article 86 from on or about 28 June 01 to on or about 11 September 01 and misconduct due to drug abuse as evidenced by a confirmed positive urinalysis for marijuana.
011017:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
011019:  Commanding Officer, Recruit Training Command, recommended to the Commander, Naval Training Center, Great Lakes that the Applicant be discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by violation of UCMJ, Article 86 unauthorized absence from on or about 28 Jun 01 to on or about 11 Sep 01 and misconduct due to drug abuse as evidenced by a confirmed positive urinalysis for marijuana. Commanding Officer’s comments: “SR M_ (Applicant) is an administrative and disciplinary burden. His conduct represents a significant departure from the conduct expected from members of the naval service. SR M_ (Applicant) has no potential for further useful naval service with an Other Than Honorable discharge.”

011022:  Commander, Naval Training Center, Great Lakes, authorized the Commanding Officer, Recruit Training Command that the Applicant will be discharged under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20011030 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 states that he was in the service less than 180 days when he made a mistake due to being scared and immature. The Applicant requests his discharge characterization be changed to either an uncharacterized or entry-level separation. By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service unless there were unusual circumstances regarding a servicemember’s performance or conduct that 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. T he Applicant’s service was marred by a NJP for violations of UCMJ, Article 86 (75 days unauthorized absence) and UCMJ, Article 112a ( wrongfully use of marijuana ). Violations of Articles 86 and 112a are considered serious offenses. 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. 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. Therefore the Board found his under other than honorable conditions characterization appropriate. Relief is not warranted.

 The NDRB acknowledges the Applicant's regret in his choice to abuse (use) drugs and his realization that he displayed a lack of judgment and maturity for the brief time he was in service. However, 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 the Applicant’s case. Relief on this basis is not warranted.
The Applicant expresses a desire to re-enlist in the military. 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. 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 enlistment 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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any post-service documentation for the Board to consider.

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), Change 33, effective 16 Jul 2001 until 21 Aug 2002, 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 the UCMJ Article 86 (unauthorized absence) and 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 .


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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