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

ex-MMFN, USN
Docket No. ND03-01111

Applicant’s Request

The application for discharge review was received on 20030613.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or entry level separation or uncharacterized.  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 20040430.  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:

1.  “On July 10, 2002 a unit sweep was held.  Then on August the 1st of 2002 I went to Captin mast were I was found guilty.  They said I had 30% THC and you have to have 15% to stay in the Navy.  I was giving a OTH, half months pay x 2, 45/45 days of restriction.  On August the 5th I put in appeal on my case, because I know I haven’t been using any drugs.  So I ask for a retest to prove my cast.  On August 12th in can back denied.  That same day I call my congress for help they sent me a form to fill out, I filled it out then sent it back.  I was told it will take 45 days before I’ll here something back I waited almost 60 days and didn’t here ain’t thing back.  So I went to Florida to speak to the congress in person so here I’m is today still waiting.  I really hope that you will look over my case and try to help me ask much as you can.  I would really like to go back in.  I was hoping to make a career out of it.
Thanks for all your time”

Documentation

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

Applicant’s DD Form 214 (2)
Seven pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000510 - 000726	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  000727			Date of Discharge:  020930

Length of Service (years, months, days):

	Active:    02  02  04
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4

Education Level:  11				AFQT:  31

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  3.00 (1)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, BER, 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 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

020724:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 020719, tested positive for THC.

020801:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance.
	Award: Forfeiture of $681 per month for 2 months, restriction and extra duty for 45 days, reduction to MMFN.  No indication of appeal in the record.

020802:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020802:	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.

020920:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

020917:	COMLOGRON TWO 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 20020930 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).

Issues 1:  The Applicant’s contends that he “never used drugs,” yet there is no evidence to support his claim.  There is, however, credible evidence in the record that the Applicant did use illegal drugs.  Mandatory processing for separation is required for sailors who abuse illegal drugs and separation under these conditions generally results in characterization of service under other than honorable conditions.  The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied. 

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.  

Regarding the Applicant’s request to change the characterization of enlistment to uncharacterized or entry level separation, by regulation, only members discharged within the first 180 days of their first enlistment can be given this kind of discharge.  Since the Applicant served in excess of 2 years, he cannot be given an uncharacterized or entry level separation.  Therefore, no relief is appropriate.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in questions.  The Board discovered no such errors after a review of the Applicant’s case.  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.  The NDRB is authorized, however, to consider 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.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, a drug free lifestyle, and certification of community service and non-involvement with civil authorities.  At this time, the Applicant has not provided any documentation for the Board to consider.  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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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), re-issued October 2002, effective 22 Aug 2002 until Present, 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