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

 ex-ETSN, USN 
Docket No. ND03-00626

Applicant’s Request

The application for discharge review was received on 20030226.  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 “convenience of the government a RE code change to RE-1 and corresponding SEP. CODE.”  The Applicant requests a documentary record discharge review.  The Applicant did list the Disabled American Veterans as the 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 and reason for discharge was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge and narrative reason 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:

“Dear DRB: The following issues are the reasons I believe my discharge should be upgraded to Honorable. If you disagree, please explain in detail why you disagree. The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.

1.  Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge. Since being discharged I have applied to several different companies and feel each one has turned me down on the bases of my discharge. Many employment agencies will not speak to me while I have this blemish on my record. They all say I have good credentials, but they can only represent flawless individuals. I have been going to school, but without any benefits I have to pay my own way; therefore I am working at the same time, and it is slowing my progress down immensely. But even when I complete school I still do not feel confident companies will be eager to hire me with an Other Than Honorable discharge.

2.  My average conduct and efficiency ratings/behavior and proficiency marks were good. Attached are copies of several of my evals. They show I was a very diligent and hard working Nuclear Reactor Operator during my service. I was always putting forth great effort to get tasks accomplished quickly and efficiently, but without reducing the quality of workmanship expected by the U.S. Navy. This effort can be seen in the Letter of Commendation I received from the captain, which is attached. I also was always eager to learn more about my job and about the operation of the ship as a whole. This is noted by how quickly I qualified all of my watch stations and sea warfare ahead of time, even with standing a four-month mess deck duty on the ship. The two OARSE ‘s we had onboard, I was a watch team member for. My watch teams received very high scores and I performed fairly well on the written exams. I was preparing to stand Reactor Operator for my third OARSE, before this discharge occurred. I was also close to completing several additional advanced quals for my Rate.

3.  I received several ribbons, a letter of commendation, and advanced fairly quickly in my rate. I received the sea service deployment ribbon, the armed forces expeditionary medal, and the Navy “E” ribbon. I received a letter of commendation from the captain for professional achievement in the superior performance of duties as RC2I maintenance man on USS John C. Stennis (CVN 74) from January to July 2000. I reached the rank of E-5 in four years times.

4.  I was so close to finishing my tour that it was unfair to give me a bad discharge. I completed approximately 4~years of my 6-year tour.

5.  I have been a good citizen since discharge. Since my discharge, in 2001, I have tried very hard to get my life on track. I stop the use of ecstasy immediately. I moved back home to DeSoto, TX. I then began helping my dad operate his business, which had shrunk down to nothing due to his failing health. While doing so I got certified as a Pest Control Technician in Texas; and am working on becoming a Certified Applicator. I also returned to college to finish my BSAST in Nuclear Engineering Technology degree with Thomas Edison State College. I returned to my old church, and have made myself a valuable member of the church. I work on their grounds & building committee, and help out with youth functions, such as volunteering as a counselor at a summer camp in Missouri. Once I finish school I will start looking for a job in the Power Industry. ”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

“6.  Equity regarding the character of discharge.

7.  Upgraded discharge based on Equity and Good conscience.

8.  In the interest of justice it is respectfully requested that the Board take jurisdiction on this case and evaluate all pertinent evidence to render a fair and equitable decision.  A reveal of the record will reveal that the Applicant has set forth clearly his contentions on DD Form 293.  Although, infractions did constitute military misconduct he is not a criminal.  When after consideration of all purcurable assembled data, if reasonable doubt should arise, it strongly requested that any and all doubt be in favor of the Applicant toward the grant of the benefit 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:

Character reference from Assistant Pastor, Windsor Park Baptist Church, dated January 16, 2003
Character reference from Applicant’s father, undated
Medical statement, dated January 27, 2003
Citation for January to July 2000
Applicant’s DD Form 214
Eleven pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960828 - 970818	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  970819		Date of Discharge:  011231

Length of Service (years, months, days):

	Active:    04  04  13
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  98

Highest Rate:  ET2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.33 (6)	Behavior:  2.67 (6)		OTA:  3.16

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, AFEM, NER

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:

990519:	NJP for violation of UCMJ, Article 92: Fail to obey lawful order, by wrongfully consuming alcoholic beverages under the age of 21 on 990510.
	Award: Oral reprimand, forfeiture of $250 per month for 2 months, reduction to ETSN.  No indication of appeal in the record.

990519:	Retention Warning: Advised of deficiency (Failure to obey order or regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

011026:	Applicant’s statement.

011105:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

011105:	Applicant advised of 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.

011106:	NJP for violation of UCMJ, Article 112A: Wrongful use of ecstasy.
	Award: Forfeiture of $692 per month for 2 months, restriction and extra duty for 45 days, reduction to ETSN.  Restriction and extra duty for 5 days suspended for 6 months.  No indication of appeal in the record.

011109:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.  

011218:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

011223:	COMCARGRU SEVEN 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 20011231 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 1-4 and 6-8:  The Applicant’s issues are without merit.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by illegal drug use.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls far short of that required for an upgrade of his characterization of service.  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  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.  Furthermore, the NDRB will change the reason for discharge and separation code if such a change is warranted.  The summary of service clearly documents that drug abuse was the reason the Applicant was discharged.  No other Narrative Reason for Separation or separation code could more clearly describe why he was discharged.  Relief denied.

Issue 5:  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.  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