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

ex-FCSN, USN
Docket No. ND02-01266

Applicant’s Request

The application for discharge review, received 020904, requested that the characterization of service on the discharge be changed to 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 030619.  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.  My discharge was improper due to no substantial evidence that I was in possession of, or used illegal substances.  The entire investigation revolved around hearsay and slander.  I will admit that I was guilty of surrounding myself with the "wrong element" (if you will) and not living up to my full potential as a member of the United States Military.  At the time of my enlistment I was a "lost soul" (so to say).  I knew I was intelligent yet extremely naive.  If there was an offense to which I was guilty of it was that.  I was naive when I was told I would not need counsel after the investigation began.  Of course this is not concrete evidence either.  In fact it is nothing less than hearsay.  I will say though I have been out of the United States Navy now for 1,104.75 days and not one has gone by without a piece of me wishing I would have made better decisions. (Regret begins the second you loose something you truly love.) The day I graduated basic training I had a sense of self-worth I had never experienced.  Looking over my rap sheet it will be difficult for you to understand this.  That day (graduation) was the third best day of my life.  Falling short only to the day I asked my Lord into my heart, and September l8th, 2001-the day my wife said"Ido".  I've taken the path of being a true man.  A path in which I never would have been able to find without the Lord, my wife, and the self-worth the Navy bestowed in me.

In closing I have a burden on my heart to which I must address.  I feel I never repaid the United States Navy or my Country for the service it did for me.  I am a good man these days and I know that the Navy played a large role.  Following the Sept. 11th event my heart has burned to take great pride in my country.  Yet it is difficult to do so as a civilian.  In just I am here to submit a request for you to change my discharge type for me to be eligible to reenlist.  I owe.

The eternally grateful x-sailor,

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	970626 - 970930	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  971001		Date of Discharge:  990813

Length of Service (years, months, days):

	Active:    01  10  13
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  67

Highest Rate:  EC3

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

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:

980218:	NJP for violation of UCMJ, Article 121: Wrongfully steal a pack of cigarettes, the property of the Navy Exchange.
	Award: Forfeiture of $242 per month for 1 month, restriction and extra duty for 14 days, reduction to FCSA.  Reduction suspended for 6 months.  No indication of appeal in the record.

980219:	Retention Warning: Advised of deficiency (Larceny.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

990701:	NJP for violation of UCMJ, Article 112A (4 specs): (1) Wrongfully possess a controlled substance between 990102 and 990601, to wit: LSD, (2) Wrongfully possess a controlled substance between 990102 and 990601, to wit: Ecstasy, (3) Wrongfully use a controlled substance between 990401 and 990601, to wit: LSD, (4) Wrongfully use a controlled substance between 990401 and 990601, to wit: Ecstasy.
	Award: Forfeiture of $558 per month for 2 months, restriction and extra duty for 45 days, reduction to ECSN.  No indication of appeal in the record.

990714:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense and misconduct due to drug abuse (use).

990722:	Commander, Navy Region, Southwest directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

Partial discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 990813 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:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While he may feel that his inexperience was a contributing factor, it does not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  The record is void of any evidence that the Applicant was treated unfairly.  His service record is marred by award of non-judicial punishment (NJP) on two separate occasions for theft and illegal drug use thus substantiating the misconduct for which he was separated.  It must be noted that most Sailors serve honorably and well.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  An upgrade to general (under honorable) conditions would be inappropriate.  Relief denied.  For the Applicant’s edification, Sailors guilty of illegal drug use normally receive a discharge characterization of under other than honorable conditions. 

Additionally, 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.  However, 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 during the processing of a formal application for enlistment through a recruiter.  Relief is therefore denied.

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.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the Applicant is living a drug free life style, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   

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 additional documentation to support any claims of post-service accomplishments at that time.  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 24, effective 20 May 99 until 26 March 2000, 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