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

 ex-MMFR, USN
Docket No. ND02-01328

Applicant’s Request

The application for discharge review, received 20020917, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representative from the Disabled American Veterans. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030812.  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/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  My summary court martial and subsequent OTH were the result of my irresponsible mistake; the use of illegal drugs while enlisted.  I have matured a lot since then, partially as a result of that experience.  I am a responsible, accountable, hardworking person who has a sincere desire to serve his country.

2.  I am including my FBI Criminal Record  which shows my arrest in February 1994 in Bloomington, Indiana.  The Bloomington, P.D. responding to a complaint about loud music, found a small Marijuana plant in a rental house I shared with several other students.  I make no excuse, we all share the responsibility equally and accepted the consequences.  It was during this time that I met my wife.  She has really helped me straighten out my life, I have not been in trouble with the law since.  (Please see attached document 1).

3.  I have been working for two years now as a Radio Frequency/Microwave design engineer.  I have developed valuable skills that could be put to good use by the Navy.

4.  I was not sure which Board Action to request in #3 on the 1st page, My goal is to be eligible for re-enlistment & employment by the Navy. Since I cannot find a RE code on my DD-214 I don't know what my current eligibility is.

5. (DAV’s Issue): Equity Regarding character of Discharge.  The petitioner’s contentions are clearly stated on DD Form 293.  While infractions did constitute military & offense he asserts several factors: his summary court martial and subsequent OTH were the result of irresponsible mistake; the use of illegal drugs while enlisted.  He stated he has matured a lot since then partially as a result of that experience.  He states he is responsible, accountable, hardworking person who has a sincere desire to serve his country.  In 1994 his FBI criminal record shows his arrest (document of record).  He states during that time he met his wife, which influence him to change his life for the better.  He has not been in trouble since 1994.  he has been working 2yrs as a Radio/Frequency/Microwave design Engineer.  He has never been convicted of Felony and has not been in trouble for eight years.  He has completed a Master’s degree in Physics and even worked as a researcher at Lawrence Berkeley National Laboratory in California.  Therefore, its strongly requested that the Board consider all mitigating circumstances surrounding this case coupled w/the impetuosity of his youth and please resolve any and all reasonable doubt and grant the benefits sought.  These issues do not supersede any previous issues.

Documentation

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

Letter from Applicant dated September 7, 2002
Copy of DD Form 214
FBI Identification Record
Copy of Master of Science Degree from Arizona State University
Character/Employment Reference Letter from L_ J. R_ Chief Engineer, NS Microwave (Facsimile Transmittal 3 pages) dated October 18, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890817 - 891211	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  891212		Date of Discharge:  910702

Length of Service (years, months, days):

	Active:    01  06  20
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  86

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.60 (1)	Behavior:  2.60 (1)		OTA:  3.10

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

910503:	Disenrolled from the Nuclear Power Training Program for demonstrated unreliability.  Not recommended for return to the program at any future date.  Future performance should be observed carefully before assigning to any future Navy School.

910516:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a. (2 Specifications): Wrongful use, possession of controlled substance, in that he did wrongfully use a controlled substance.
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Confinement for 30 days (suspended for 6 months), forfeiture of $500.00 pay per month for 1 month, reduction to E-1.
	CA action 910523:  Sentence approved and ordered executed.

910523:	DAAR indicates marijuana abuse, found not dependent, recommended for separation not via VA Hospital.  (Comments:  Petty Officer M___ identified as a result of admitting his marijuana use to an instructor, on 910415).

910523:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

910529:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by violation of UCMJ, Article 112a-wrongful use of controlled substance [Extracted from CO's message].

910531:	Applicant advised of his rights and having elected 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 [Extracted from CO's message].

910603:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

910625:	BUPERS 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 19910702 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).

Issues 1-5.  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. Relief denied.

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 occurred 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.  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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offense for which he was discharged.  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.  Navy Military Personnel Manual, (NAVPERS 15560A), Change 11, effective 
14 Jun 90 until 14 Aug 91, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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