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

ex-FR, USNR
Docket No. ND03-01195

Applicant’s Request

The application for discharge review was received on 20030702.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable, general/under honorable conditions and entry level separation or uncharacterized and the reason for the discharge be changed to “Convenience of Military”.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area.  Applicant did not acknowledge this letter.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040514.  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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 24, Character of Service, should read:  “UNDER OTHER THAN HONORABLE CONDITIONS" vice “OTHER THAN HONORABLE,” and Block 25, Separation Authority, should read:  “NAVMILPERSMAN, Article 3630620” vice “MILPERSMAN 3630650,” and Block 26, Separation Code, should read:  “HKK” vice “KFS,” and Block 28, Narrative Reason for Separation, should read:  "Misconduct – Drug abuse (Use)" vice "SEPARATION IN LIEU OF TRIAL BY COURT MARTIAL," and Block 29, Dates of Time Lost During This Period, should read:  “TL: 89JAN15 -  89JAN30” vice “TL: 89JAN15 – 89JAN29,” and  The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Dear Board Members: The following issues are reasons I believe my discharge and or reenlistment code 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.) My punishment was too sever for the offense.  At Captains Mast, I was offered two choices.  I could stay in and serve some punishment time in the restriction barracks and then return to the fleet, or, leave the Navy due to military cutbacks.  I am hoping the fact that I was not “kicked out” or even asked to leave will help allow a judgment for an upgrade of either my discharge, re-enlistment code, or both.  I am certain I was not informed I would receive an RE-4 if I chose to leave.   Had I known, I would not have chosen to leave.   I would have served my punishment and might still be in the Navy today.

2.) Personal problems impaired my ability to serve.  Being barely 17 I had not yet out grown my ability to be influenced by peers.  I did not have the ability to understand I had to make my own decisions and that those decisions would effect the outcome of my life.

3.)I have been a good citizen since my discharge.  I have remained alcohol and drug free and have been a contributing member of society as stated in several of my included character letters.  I have also held gainful employment at all times and donated much of my personal time to several charitable causes.

4.) My ability to serve was impaired by my youth and immaturity.  Had I not been so immature there is no doubt what so ever that I would have been an outstanding member of the Navy.  If I had been even just one year older there is no chance that I would have behaved so irresponsibly.  Hindsight being 20/20 I should have listened to the warnings of my family and waited until I was 18 or at least until I had graduated high school to enlist.

5.) My average conduct and efficiency ratings/behavior and proficiency marks were good.  Throughout my service in the Navy up until the time of my unauthorized absence and positive urine analyses I had done well.  I graduated "boot camp" and "A" school.  I was never insubordinate or confrontational.  I was well liked by my peers, superiors and Company Commanders during and after Basic training.

Thank you for your consideration in my case.  Please contact me for any reason.

Very Sincerely,  

 J_ W_ (Applicant) (social security number deleted)
Applicant's mailing address and telephone number deleted”

Documentation

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

Letter from Applicant, dated April 21, 2003
List of previous employees, dated April 22, 2003
Criminal history, dated April 22, 2003
Driving record for five years, dated April 22, 2003
Character reference, dated March 25, 2003
Character reference, dated March 26, 2003
Character reference from Reverend, American Baptist Churches, undated
Job reference, dated March 31, 2003
Character reference, dated April 1, 2003
Letter of recommendation, dated March 26, 2003
Character reference, dated April 1, 2003
Character reference, undated
Character/job reference, dated April 3, 2003
Character reference, undated
Character/job reference from Applicant’s step-father, undated
Letter of recommendation from Applicant’s mother, April 23, 2003
Applicant’s DD Form 214
Travel certificate/separation without orders, dated March 28, 1989
Detachment endorsement to orders

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  881019			Date of Discharge:  890328

Length of Service (years, months, days):

	Active:    00  04  22
	Inactive:  00  00  17

Age at Entry:  17 Parental Consent		Years Contracted:  8

Education Level:  11				AFQT:  72

Highest Rate:  FR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  15

* No marks available

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

881107:	Applicant ordered to active for 36 months in the Active Mariner Program.

881108:	Applicant briefed on Navy's policy of drug and alcohol abuse.

890115:	Applicant to unauthorized absence 0730, 890115.

890130:	Applicant from unauthorized absence 1625, 890130 (15 days/surrendered).

890205:	Applicant to unauthorized absence 2130, 890205.

890206:	Applicant from unauthorized absence 1700, 890206.

890209:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 890131, tested positive for cocaine.

890227:	NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence for a total of 16 days, violation of UCMJ, Article 112A: Wrongful use of controlled substance, cocaine.
	Award: Forfeiture of $325 per month for 2 months, restriction and extra duty for 30 days, reduction to E-X.  No indication of appeal in the record.

890309:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.  

890314:	Drug and Alcohol Abuse Report: Cocaine abuse, less than monthly.  Service directed urinalysis 890131.  CAAC found Applicant not dependent.  Commanding officer recommended separation.  Comments:  Mbr is going thru apprentice accession training

890314:	Applicant notified of intended recommendation for an entry level separation by reason of misconduct due to drug abuse as evidenced by Commanding Officer’s NJP of 890227 for violation of the UCMJ, Article 112A – wrongful use of a controlled substance, cocaine.

890314:	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.

890314:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

890322:	Commander, Naval Training Center, San Diego, CA 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 19890328 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 1-5:  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 youth and immaturity 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 being UA and for drug abuse thus substantiating the misconduct.  Applicant contends the punishment he received was too severe.  This is not a valid basis for relief, under other than honorable discharge is normally awarded to those who use illegal drugs.  Relief 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.  

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.  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.  

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, 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