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

ex-MMFA, USN
Docket No. ND03-01138

Applicant’s Request

The application for discharge review was received on 20030618.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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.  To whom it may concern:

I enlisted into the Navy in Jan 28, 2000 I was assigned to the USS Peleliu in San Diego upon completion of bootcamp.  During that time I did the best job I could do while in the Navy.

I walked into the Navy with an attitude and a few personal problems.  I realize now that I was not prepared to undertake such a commitment for such a long period of time.  I was pushed by my Mother for my original enlistment.  I really did not want to join.  As time passed I became more and more frustrated.  During my 2 ½ year stay in the Navy my son became ill, my 15 yr old sister became pregnant and I lost a Grandmother.  I was already frustrated about being there when I realized my Mother was having a very difficult time coping.  My concern and frustration mounted daily.

I requested a leave to go home to see if I can help out there and was refused.  Prior to that I was refused the request to go see my ill son.  My dislike for the Navy grew fast and I began to build resentments.  After a while I felt I needed to get out or I would go crazy.  I asked how I could go and was told I could not.  The only way I could leave was to be kicked out.  Well with my attitude at the time and with all that was going on with me at that time I went for being kicked out.  I smoked some marijuana and popped my urine test.  I knew what I was doing at the time and honestly felt it was the best thing for me.  It was the only way I could see to get out of the Navy as quickly as possible.  I have since quit smoking marijuana.  I do realize it does effect ones reasoning pattern.

I was wrong.  The Navy is where I want to be.  I feel I was an asset and a good sailor when I was there and put my all into what I was doing.  I still feel I can be an asset now.  I am sure you have heard the saying “You don’t know what you have until it is gone” well that stands true in my case.  I miss the Navy and want to re-enlist.  I realize now that my decisions were made in haste and without forethought.  Sometimes we have to lose something to realize what it really meant to us.

What I am asking for is another chance, not only would I like my discharge to be changed to Honorable I am making a request for a good re-enlistment code so I can re-enlist.  I am asking that you understand what I was going through at the time and grace me with another chance to show the US Navy that I do have what it take to be a good sailor.  Although I will be saddened if I am not allowed to re-enlist I would understand.  I realize that I brought this upon myself and take full responsibility for my actions.  We have to learn our lessons in life whether we like them or not.  All I can do is ask for this chance to prove myself.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000126 - 000127	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  000128		Date of Discharge:  021101

Length of Service (years, months, days):

	Active:    02  09  03
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 (12 months extension)

Education Level:  10			AFQT:  59

Highest Rate:  MMFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (2)	Behavior:  2.00 (2)		OTA:  2.57

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NDSM, NUC

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:

020927:	NAVDRUGLAB [SAN DIEGO, CA], reported Applicant’s urine sample, received 020925, tested positive for [THC].

020930:	NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substance, to wit: marijuana.
Award:  Forfeiture of $649.00 pay per month for 2 months, 45 days restriction to USS PELELIU, and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

021007:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

021007:	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.

021011:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

021029:	CNMPC 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 20011101 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:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While he may feel that his personal problems were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by award of non-judicial punishment (NJP) for illegal drug abuse.  Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing enlistment opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.   

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.   

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 or any other evidence relating 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