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

ex-MSSA, USN
Docket No. ND02-01294

Applicant’s Request

The application for discharge review, received 020912, 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 030722.  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 3630620. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I wish the board will take into consideration my service record up until my discharge  I had no merits or strikes against me and you can see my drug screen came back negative.  I lied about smoking pot because of my situation with my wife.  At the time I made E-4 rank.  My wife & I married young and when my wife had our first child I went out on a 2 1/2 mo deployment.  During the time I was gone she had to move out of apt to another big one by herself w/an infant.  When I returned my son was almost three months old and my wife became pregnant with out second child.  When my daughter was born I was not there I was on a 6 mo deployment and that was very hard for my wife.  Now a young mother of two infants a one year old and a 2 mo old base housing calls our house is available but in order to get it she has to come back to V.A. in a matter of time & sign papers to get it.  So once again my wife drove from Ohio to VA with now two children to move into our home on base.  I was gone a lot on workups & deployment meds which I loved, the navy was my life and my job but my wife could not understand that.  When I had returned from a workup she had packed her's & the kids clothes and went to Ohio.  I mad several phone calls to my wifes parents house to try and get her to come home.  But her family was a problem, so I left and went to Ohio to bring my family home.  When they came home everything seemed fine for awhile.  I went on a workup and when I returned my wife & children were not at pier side so I became concern.  When I arrived home our house was completely empty.  All that was in our house was a mattress.  She sold all of our belongings and left.  When I could not get leave to work things out with her I left we were getting ready for another 6 mo deployment and I could not leave for deployment & not be sure about my family.  It was very stupid of me & I regret it everyday.  But she is my wife, the mother of my children, my best friend.  I just could not let her slip away.  I wish we had gotten marriage counciling or some type of help.  I do truly regret the way I went about handling the whole situation and if I could change it I would.  I would like to know if you can look at my service record and see all my accomplishments and hopefully understand my situation.  It may not have been the way you would have handled it.  But I made a very bad decision.  And I hope the board will consider changing my discharge.  I currently am in the Army reserves.  But if possible would love to go active duty again.  So I may continue to serve my country.

Documentation

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

Handwritten letter from Applicant's wife (2 pages)
Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	None
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  940126		Date of Discharge:  970728

Length of Service (years, months, days):

	Active:    03  04  12
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  55

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (3)	Behavior:  3.33 (3)		OTA:  3.61

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, AFSM, AFEM, NATOM, BATTLE"E" (2), SASM wb*

Days of Unauthorized Absence:  51

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

970220:	To UA.

970228:	Missed sailing of USS GEORGE WASHINGTON (CVN-73).

970311:	From UA, (18 days/S)

970428:	Missed sailing of USS GEORGE WASHINGTON (CVN-73) from Norfolk, VA.

970503:	Missed sailing of USS GEORGE WASHINGTON (CVN-73) from Norfolk, VA.

970509:	Missed sailing of USS GEORGE WASHINGTON (CVN-73) from Norfolk, VA.

970513:	Applicant declared a deserter on 970511 having been an unauthorized absentee since 0645, 970411 from USS GEORGE WASHINGTON (CVN-73).

970516:	Applicant surrendered to military authorities on 970515 (2055) at Naval Base, Norfolk, VA.

970616:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86.
	Specification: UA from unit from 970411 to 970514 (33 days/S).  Charge II: violation of the UCMJ, Article 112a: Wrongful use of marijuana on or about 970411 to 970514.
	Finding:  to Charge I and II, and the specification thereunder, guilty.
	Sentence:  Restriction and extra duty for 45 days, reduction to E-2.
	CA action 970624:  Approved findings of guilty and ordered the sentence executed.

970625:	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 as evidenced by your service record.

970625:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

970714:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and misconduct due to commission of a serious offense as evidenced by his service record.

970717:	COMMANDER, GEOGRE WASHINGTON Battle Group authorized 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 970728 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 family and marital problems were contributing factors, they do 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.  His service record is marred by a summary court-martial for unauthorized absence and illegal drug use, thus substantiating the misconduct for which he was separated.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.  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 and unauthorized absence normally receive a discharge characterization of under other than honorable conditions. 

Regarding reenlisment, 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.  

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.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  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 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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 11 Dec 97, Article 3630620  SEPARATION OF ENLISTED PERSONNEL 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