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NAVY | DRB | 2005_Navy | ND0501470
Original file (ND0501470.rtf) Auto-classification: Denied


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

ex-YNSN, USN
Docket No. ND05-01470

Applicant’s Request
The application for discharge review was received on 20050908. The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060525. 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 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 Naval Council of Personal Boards. I wish to have my discharge changed, for many reasons, the most important is that I wish to rejoin the armed forces coming from a military family it is important I have fully paid the price for the mistake that I did while I was in although I have faced up to it and paid the price I would like to have a second chance as well as make up for the mistake I did and get another opportunity to prove myself as a productive citizen of the United States and United States Military Personnel.”

Sincerely,

[signed] K_ C_ (Applicant)

Applicant’s Remarks: (Taken from the DD Form 293): I thank you for your time and consideration in this matter.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Reference Letter from S_ C_ (Applicant’s wife)
Reference Letter from K_ B_

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19990820 – 19991129               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19991130             Date of Discharge: 20030121

 Length of Service (years, months, days):

         Active: 03 01 21
         Inactive: None

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

 Age at Entry: 22

 Years Contracted: 4

Education Level: 08 (GED)                                   AFQT: 36

 Highest Rate: YNSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (4)              Behavior: 2.5 (4)                 OTA: 2 .91

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon, National Defense Service Medal, Good Conduct Medal.


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 :

020503:  Retention Warning: Advised of deficiency (Unauthorized absence from a place of appointed duty (Azalea Festival clean up-crew); Making false official statements as to your where-abouts during the Azalea Festival to your Leading Chief Petty Officer and Leading Petty Officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
021118:  NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 021114, tested positive for cocaine.
021223:  NJP for violation of UCMJ, Article 112a: Wrongful use of cocaine.
         Award: Forfeiture of $1/2 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
021223:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct drug abuse.

021223:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
030110:  GCMCA, Commander, Navy Region, Mid-Atlantic authorized the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse.

030212:  Commanding Officer, Naval Support Activity Norfolk submitted the administrative discharge package to CNPC. Commanding Officer’s comments: “On December 2002, Seaman Apprentice C_ (Applicant) was taken to CO’s NJP for Article 112a, wrongful use of cocaine. He was notified under the Administrative Board Procedure and has chosen not to request a board hearing. Seaman Apprentice C_ (Applicant) has no potential for future service. Separation with an Other Than Honorable Discharge is appropriate in his case. ”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20030121 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).

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 was marred by 1 retention warnings and nonjudicial punishment proceedings for violation of Article 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 Applicant states that he is requesting an upgrade so he may “rejoin the Armed Forces.” There is no requirement or law that grants recharacterization solely on the issue of allowing reenlistment. This issue does not serve to provide a foundation upon which the Board can grant relief. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces. Additionally, the 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. Relief is not warranted.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 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 two letters of recommendation as documentation of post-service accomplishments. 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. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge. Relief is not warranted.

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 Present, 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 112a, drug abuse.
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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