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

ex-SA, USN 
Docket No. ND03-00422

Applicant’s Request

The application for discharge review was received 20020121.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to permit reinstatement in the Navy as a sailor.  The Applicant also requests to change reenlistment code of RA4 to RA3, RA2, or RA1.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant lists a civilian counsel as his representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031215.  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

Applicant’s issues, as stated on the application:

“The issue in this case is Mr. T_ (Applicant) unfair and egregious dismissal from the Navy for an unintentional and inadvertent borrowing and use of a minor cold medicine from another recruit. Mr. T_ (Applicant) should be reinstated in the Navy since the drug violation was cold medicine taken from another recruit. Mr. T_ (Applicant) had no idea it was illegal to do so. Had he known, he would never had done so. Suffering from a headache would have been a small price to avoid a discharge. Being in the Navy has been a lifelong goal of Mr. T_ (Applicant). His record up to this incident was exemplary. His recruit division commanders were very supportive and urged him to apply for reinstatement. His supporting statement by S_ B_ is outstanding. She says “he has great potential to be a sailor and a top performer.” In fact, every officer at the Navy Training Center said he should not be discharged due to his outstanding record. The only reason he was discharged was because he received inadequate representation. His overall mark as a sailor in the Navy Delayed Entry Program (DEP) was a 4.0 on a scale of 1.0 to 4.0. This harsh and unfeeling, as well as unwarranted punishment by the Navy is an affront to the Navy’s reputation for fairness and justice.

He is determined to return to the Navy and was unaware that it was illegal to take cold medicine from a fellow recruit. He was a top performer in almost every recruit category. He loves the Navy and was eager to begin his training to be an operations specialist. He graduated Boot Camp on December 28, 2001 without further incident. He was instructed to report to THU (Temporary Holding Unit).

Since departing from the Navy, N_ (Applicant) has attended Howard County Community College and is doing well in his studies. He is working as a manger at the Columbia Gym and has had a successful work experience there.

Mr. T_ (Applicant) only wants to return to the Navy. As stated previously, it is a lifelong goal to serve his country as a Navy sailor. He feels devastated that he was separated from the Navy for a reason he doesn’t understand. He was unaware taking some cold medicine was illegal and would not have done so if he had known. He was a trainee and the purpose of training is to show trainees what is right and what is wrong. Making mistakes is an integral part of any training. To be dismissed for making an innocent error should be an oxymoron (an impossibility). We only want that he be reinstated as he was unjustly dismissed from the Navy.

He has pursued this reinstatement vigorously and determinedly at great expense. It is almost the only thing he thinks about each day. His instructors praised his activities while working at the Navy Training Center.

Since his separation from the Navy, he has become a very productive citizen, going to college and working full-time.

DRUG VIOLATION

The regulations concerning drugs in the Navy that Mr. T_ (Applicant) violated was article 122(a). The regulation governing recruits are the same, but are strictly enforced. Mr. T_ (Applicant) took no controlled and dangerous drug outlawed by the State of Maryland, or any other state, or the federal government. He took only vicodin, commonly given to recruits for getting their teeth pulled. It is a pain medication. Many recruits are given this “over the counter” medication. It is not restricted in any way.

Submitted by civilian counsel subsequent to submission of application:

“REVISED ISSUES

After some further investigation, I have learned that vicodin is a controlled and dangerous drug. I understand the Navy has a “zero tolerance” policy, even though Mr. T_ (Applicant) taking the drug was innocent, only to relieve a massive migraine headache.

While I believe that the Discharge is very unfair, we would like to request the following ONLY if the Navy cannot reinstate Mr. T_ (Applicant):

1.  Give Mr. T_ (Applicant) an Honorable Discharge or a General/Under Honorable Conditions Discharge.

2.  Change RA4 to RA3, RA2, or RA1.

Sincerely,”

Documentation

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

Administrative Discharge Board Witness Questionnaire, dated November 25, 2002
Administrative Discharge Board Witness Questionnaire, dated January 8, 2002
Job/character reference, dated January 16, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	010731 - 011022	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  011023		Date of Discharge:  020205

Length of Service (years, months, days):

	Active:    00  03  13
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  52

Highest Rate:  SA

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:

020117:	NJP for violation of UCMJ, Article 112A: Wrongfully use vicodin on 011208.
	Award: Forfeiture of $257 per month for 7 days, restriction for 16 days.  No indication of appeal in the record.

020124:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020124:	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.

020128:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

020128:	Commander, Naval Training Center, Great Lakes, IL 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 20020205 under other than honorable conditions for misconduct due to drug abuse (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.  Mandatory processing for separation is required for sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Issue 2.  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.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Relief is therefore denied.  

The following is provided for the edification of the Applicant.  There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  However, the NDRB is authorized to consider post-service factors in the recharacteriza-tion of a discharge.  Outstanding post-service conduct, 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 may be considered.  Verifiable proof of 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, an 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 documents that may 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 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 33, effective 16 Jul 2001 until 21 Aug 2002, 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