DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

ex-ATAR, USN
Docket No. ND02-00526

Applicant’s Request

The application for discharge review, received 020320, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The Applicant requested a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021121.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  Discharge Review

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Personal account of USN Disciplinary Action (7 pages)
Letter to Cdr from Applicant's mother dated April 25, 2001 with attachments
Letter to congresswoman dated June 29, 2001 with attachments
Copy of consent to release of personal record information dated November 7, 2001
Letter from Member of Congress dated July 2, 2001
Letter to Member of Congress dated July 12, 2001
Letter from Member of Congress dated August 14, 2001
Letter to Member of Congress dated August 3, 2001
Letter to Member of Congress dated July 24, 2001
Letter from Member of Congress dated July 30, 2001
Letter to Member of Congress dated July 24, 2001
Letter to Applicant dated September 6, 2001
Letter to Applicant dated September 18, 2001
Memorandum from Applicant to Defense Finance and Accounting Service dated October 3, 2001
Letter to Applicant dated October 1, 2001
Two pages of fax
Nineteen pages printed from the internet
Copy of consent to release of personal record information dated June 9, 2001
Letter from Member of Congress dated September 13, 2001
Letter to Member of Congress dated November 1, 2001
Seventy-one pages from Applicant's service record (throughout the supporting documents)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: USNR (DEP)	000331 - 000410	COG

Period of Service Under Review:

Date of Enlistment:  000411		Date of Discharge:  010525

Length of Service (years, months, days):

	Active:    01  01  15
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  54

Highest Rate:  ATAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*No Marks Found in the service record.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

010411:	NJP for violation of UCMJ, Article 112a: Wrongful use, possession, etc. of a controlled substance.
	Award: Forfeiture of $521 per month for 2 months, restriction and extra duty for 45 days, reduction to ATAR.  Appealed 010502.  Appeal denied 010517.

010430:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense.

010430:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010503:	Medical evaluation for alcohol/drug abuse found the Applicant to be  ETOH dependent.  

010504:	Applicant declined treatment.

010523:	Commanding Officer, Strike Fighter Squadron 124 recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse (use).

010524:	Commanding Officer, Naval Air Station, Lemoore directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 010525 under other than honorable conditions for misconduct due to drug abuse (use) (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

Issue 1.  There is credible evidence in the record that the Applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions.  The Applicant failed to provide sufficient documentation to refute the presumption of regularity concerning his use of illegal drugs and subsequent processing for administrative separation.  That the Applicant may know other sailors who were separated under similar conditions but received a higher characterization of service does not mitigate his misconduct or warrant an upgrade to his characterization of service.  Relief denied.

The Board’s charter limits its review to a determination on the propriety and equity of the discharge.  This review does not include consideration for reinstatement of monies, clearances, rank, leave, or benefits determined by the Veterans Administration.  The Board found no mistakes on the Applicant’s DD-214.  Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief is therefore denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Additionally, 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 the service.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his 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 31, dated 20 Feb 01, effective 12 Feb 2001 until 15 Jul 2001, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 "afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023