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

  ex-ADAA, USNR(TAR)
Docket No. ND03-00332

Applicant’s Request

The application for discharge review was received on 20021217.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests 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 20031121.  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, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

1.  “This is in response to item 8 on the application for the dismissal review:

I feel my discharge was adequate due to the nature of my offence but feel my OTH was strict.  It’s been three years since my service career has ended and I have spent sleepless nights knowing what I did was a selfish act.  I have messed up and know there is no toleration for error.  Since learning from my mistake I want to prove I am not a screw up.  I am willing to do whatever it takes for continuation of the service.  I’m embarrassed to even have to write such a letter.

Through out my small time in the Navy I obtained a decent record both for myself and for the Navy uniform till my unfortunate mishap.  Once out of boot camp, where I served as RPOC for division 205 in ‘97, I then went into “A” school becoming class leader as shown in the supporting documents.  After “A” school I was shipped to Jacksonville, Florida where I received a 97 on my final in an “I” level degree maintenance course.

During my time at NAS JRB Fort Worth I spent my time in the Honor Guard, represented my division as PT Coordinator and obtained the highest score on PRT testing for a year before my departure off of NAS Ft. Worth.  It was caption M_ request, also given in the supporting documents, that an OTH was be unjust due to my superior performance while on his base.  Being on honor guard I have became known by higher staff on base and I feel my name was well represented throughout.  I am not able to contact Captain M_ but if you wish, I’m more then sure my remembrance will be known.

I do understand my punishment, my problem lies where I am not able to clear my name well enough to join any branch of service.  I do not make enough to attend school on my own and wish to join to uphold my family reputation of service to this country as well as to better myself in this unfortunate circumstance.  I have had nothing sense my departure of the Navy and wish to have my discharge and/or reenlistment code upgraded so I am able to continue serving both my family and this nation.28-Nov-0228-Nov-02
I thank you for your time and your decision will be respected.

Sincerely,

J_ M_ S_”

Documentation

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

Four pages from Applicant’s service record

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:  961224		Date of Discharge:  991220

Length of Service (years, months, days):

	Active:    02  09  26
	Inactive:  00  02  00

Age at Entry:  20			Years Contracted:  8

Education Level:  12			AFQT:  51

Highest Rate:  ADAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)	Behavior:  4.00 (1)		OTA:  3.71

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:

970619:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation, violation of UCMJ, Article 134: Underage drinking.
	Award: Forfeiture of $400 per month for 1 month.  No indication of appeal in the record.

980504:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 14 days, reduction to ADAA.  Reduction suspended for 6 months.  No indication of appeal in the record.

990830:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 990830, tested positive for THC.

991028:	NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substance.
	Award: Forfeiture of $537 per month for 1 month, extra duty for 45 days, reduction to ADAA.  No indication of appeal in the record.

991104:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

991104:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

991112:	Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments (verbatim): (1) ADAA S_ (Applicant) is in noncompliance with the Navy’s zero tolerance policy for drug use.

	(2) ADAA S_’s (Applicant’s) drug use was discovered as a result of random urinalysis testing conducted on 17 August 1999.  The positive test results were forwarded to the attention of this command on 30 August 1999.

	(3) Based on ADAA S_’s (Applicant’s) sustained superior performance since reporting onboard this command and based on the strong support and character statements made by his immediate supervisors, I do not believe that an Other Than Honorable Discharge is warranted in this case.  I strongly recommend that ADAA S_ be separated from the naval service with a General type discharge under honorable conditions.

991130:	CNPC 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 19991220 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.  The Board disagrees with the Applicant’s contention that the characterization of service, Under Other Than Honorable Conditions, was “strict”.  There is credible evidence in the record that the Applicant used illegal drugs, and separation under these conditions generally results in characterization of service Under Other Than Honorable Conditions.  Additionally, the Applicant’s service was further marred by nonjudicial punishment for violation of the UCMJ Articles 92 and 134.  While the Board recognizes that the Applicant is remorseful for the poor judgment he exercised during his military career, the Board will not recharacterize a former member’s discharge because he realizes he made mistakes while serving his country.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls short of that required for an upgrade of his characterization of service.  The Board found the discharge and characterization of service equitable and proper.  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 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.

Additionally, there is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans’ benefits, such as the G.I. Bill, and this issue does not serve to provide a foundation upon which the Board can grant relief.  

The NDRB is authorized, however, 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, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle.  

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