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

 ex-AAA, USN 
Docket No. ND03-00622

Applicant’s Request

The application for discharge review was received on 20030225.  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 20040205.  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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My Other Than Honorable discharge, resulting in a Re-Entry Code of 4, received on June 11, 1994 was, in my humble opinion, inequitable because it was based on an isolated instance in 11 months of active service with no further adverse effects.  While I fully understand and support the Armed Forces policy of Zero Tolerance.  I feel that my circumstances clearly indicated that the use of narcotics was a one-time incident and perhaps a plea for help, and not stemming from habitual use.

During my 11 months on active duty, I was recognized for above average performance.  While in Basic Training, I was selected by my Company Commanders to serve as a Recruit Petty Officer and assigned for duties of Company Yeoman.  Due, in part, to this service, and, additionally, for performing well academically, I received a commendation from Captain H_, then Commanding Officer, Recruit Training Command, San Diego, resulting in meritorious advancement to E-2.  While training at my “A” School (FleASWTracCenPac), I received another commendation from the Commanding Officer in recognition of my accomplishments while assigned to Base Maintenance and Transportation as duty Driver.

Upon graduation from “A” School, I was given the option of extending my EOAS from 4yo to 6yo due to exemplary academic performance.  I placed in the top 5 of my “A” School class or approximately 25.

When time approached for me to depart to my first command (Yokosuka, Japan), I chickened out.  During this time, I was extremely close to my family.  At the time, the thought of being so far from them made me act irrationally.  Acting with a fellow shipmate, we smoked marijuana and turned ourselves in resulting in Administrative Separation.

In the months prior to this one discretion, I had hoped to gain entrance into the Naval Academy and began taking steps to achieve this goal.  I re-took the SAT exam and doubled my score from High School, academically qualifying me entrance to the Marine Corp. Academy, which holds slightly higher entrance standards.

It is clear from my performance prior to this one isolated event that I was not then or at anytime a danger to myself or my fellow service members but simply acting impulsively in fear of the unknown and not knowing where to get relieve from this fear. In the years that have passed, I’ve felt the need to rectify this matter and re-enlist in the Navy. Nearly 10 years ago, I made a commitment to my country to serve and defend her against all foes. Because of this error in judgment, I greatly betrayed my country, and let my family and myself down in the process.

As stated in the attached Character References, I have become a responsible, mature person and, most importantly, have maintained a drug free life. I know I made a major mistake, and one that deserved the punishment I received, but that punishment didn’t end with my dismissal from the Navy. It continues each time I think about how much I have hurt my country.

In the years that passed, I’ve tried to find a way to appeal to the Navy Discharge Review Board, but was unable to find the means to do so until now. My request is simple. I ask for a review of my performance and an analysis of my Character References, resulting in a change in my discharge type, or more specifically, my RE Code. My desire is to reenter the Navy and fulfill the obligation to my country that I voluntarily made. I beseech the Board to favorably grant my request. Now, more then ever, with the threat of war a possibility, I feel that I must make this attempt.

I sincerely appreciate your time and attention in this matter.”

Documentation

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

Character reference, dated December 5, 2002
Character reference, dated December 5, 2002
Character reference from Applicant’s uncle and aunt, dated January 27, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930713 - 930719	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  930720		Date of Discharge:  940628

Length of Service (years, months, days):

	Active:    00  11  09
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  81

Highest Rate:  STGSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB			Behavior:  2.80 (1)		OTA:  NOB

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, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

940223:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.  [Extracted from Commanding Officer’s message dated 940614.]

940421:	NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana on 940216.
	Award: Forfeiture of $416 per month for 2 months, restriction and extra duty for 45 days, reduction to STGSR.  No indication of appeal in the record.

940423:	Drug and Alcohol Abuse Report: Marijuana abuse, less than money, ashore off duty.  Self referral 940215.  Physician found Applicant not dependent and recommended separation.  Commanding Officer recommended separation.  Comments: Member is being processed for separation.  He was not required to be screened by CAAC.

940602:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.  [Extracted from Commanding Officer’s message dated 940614.]

940602:	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.  [Extracted from Commanding Officer’s message dated 940614.]

940614:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

940623:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940628 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:  The Applicant states his discharge was based on one isolated incident in “11 months.”  Even though the civilian world treats some offenses with leniency because they are a first time incident, to maintain proper order and discipline the military does not view such offenses as minor infractions.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) for illegal drug use.  Drug abuse warranted processing for separation, normally 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, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   At this time, the Board determined that the documentation submitted by the Applicant does not 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 5/93, effective 
05 Mar 93 until 21 Jul 94, 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