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NAVY | DRB | 2006_Navy | ND0600049
Original file (ND0600049.rtf) Auto-classification: Denied


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

ex-AHMAN, USNR (TAR)
Docket No. ND06-00049

Applicant’s Request
The application for discharge review was received on 20051004. The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060810. 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 General (Under 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 due to an isolated incident in 35 months of unblemished service. I feel that the mistake of a naive young man should not be held against him for life. I graciously request that the board change my discharge to honorable and my reentry code to 1 so that I may rejoin the U.S. Navy and serve my country in this time of great need. I eagerly await your reply.

Sincerely, [signed] J_ M_ (Applicant)”

 Documentation
Only the service and medical records was reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19970225             Date of Discharge: 20000428

 Length of Service (years, months, days):

         Active: 02 11 17
         Inactive: 00 02 17

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

 Age at Entry: 18

Years Contracted: 4

Education Level: 11                                 AFQT: Not legible
Highest Rate: AMH3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.3 (6)              Behavior: 2.8 (6)                 OTA: 2. 99

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None.


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

GENERAL (UNDER HONORABLE CONDITIONS)/ MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly Article 3630620 .
Chronological Listing of Significant Service Events :

970225:  Enlistment waiver for one non-minor misdemeanor (possession of marijuana) granted.

 000216:  NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 000125, tested negative except for MDA/MDMA. Results of additional tests performed on these samples for MDA/MDMA are still pending and will be reported by separate message.

000218:  NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 000125, tested positive for MDA/MDMA also known as “ECSTASY”.

 000222:  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.

000222:  Applicant advised of rights.

000301:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
 Award: Restriction for 45 days (suspended), extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
000310:  Retention Warning: Advised of deficiency (Violation of UCMJ Article 112a.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
000329:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse that such misconduct warranted separation, and recommended discharge a general (under honorable conditions).
000426:  Commanding Officer, Naval Air Facility Washington recommended discharge under other than honorable conditions by reason of misconduct drug abuse. Commanding Officer’s comments: “This record of proceedings is forwarded, non-concurring with the administrative board’s characterization of separation. I strongly recommend separation under Other Than Honorable conditions. Having reviewed the findings of the board, I strongly disagree with the board’s recommendation to characterize AN M_’s (Applicant) discharge as General under Honorable conditions. Separation of an admitted drug offender under Honorable conditions undermines our “Zero Tolerance” policy and sends a mixed message on our Navy’s commitment to enforce its policy on illegal drug use. I feel the consequences of this board’s recommendation not only compromise the Navy’s “zero tolerance” policy, but possibly could encourage the use of illegal drugs as a viable alternative for some personnel who desire quick termination of their enlistment contract. Only the certainty of separation under Other Than Honorable conditions and the fear of the adverse consequences an Other Than Honorable discharge brings in civilian life will reinforce the Navy’s commitment to eradicate illegal drug use with our ranks.”

000427:  Commanding Officer, Naval Air Facility Washington authorized the Applicant's discharge with a general (under honorable conditions) by reason of misconduct drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20000428 by reason of misconduct due to drug abuse (A and B) with a service characterization of general (under 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 an upgrade to his discharge characterization to honorable. The Applicant contends that his discharge was based on an isolated incident in 35 months of unblemished service. The NDRB advises the Applicant that 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. The evidence of record shows that the Applicant’s service was marred by a non judicial punishment for violation of Article 112a (wrongful use of a controlled substance; ecstasy). The Board found no indication in the record of inequity or impropriety. The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. A v iolation of Article 112a is considered a serious offense and typically warrants a punitive discharge if adjudged at a special or general court-martial. 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.

The Applicant requests an RE code change to 1 so that he may rejoin the U.S. Navy and serve his country. The NDRB advises the Applicant, that 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.




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. Relief denied.
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 27, effective 27 March 2000 - 11 Feb 2001, 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 (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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