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

ex-BMSN(SW), USN
Docket No. ND03-01320

Applicant’s Request

The application for discharge review was received on 20030805.  The Applicant requests the reason for the discharge be changed to (general) under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant did not list a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040526.  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.  “I really do not have any issues because the fact of the matter is that I did it.  All I ask is to please know I regret what I have done and have learned a very valuble lesson and I beg of you to see that and give me a second chance.  I WILL NOT FAIL AGAIN.  THANK YOU.”
2.  “My name is T_ S_ F_ (Applicant).  I joined the Navy in December of 1995.  I then went on to Annapolis, Maryland to train midshipman at the Naval Academy in deck seamanship, Navigation and Engineering.  I then reported to the U.L.S. George Washington CUN –73 in January 1998.  Shortly after I made E-4 CBM3), made my first cruz and that’s when I fell in love with the Navy.  I received my Surface Warfare Pen as a third class, my good conduct, great evaluations, and shortly before my discharge I made E-5.
I am writing you to ask for a second chance.  Another chance to serve my country.  I was discharged out of the Navy with an Other Than Honorable discharge, because I failed.  I failed to stand up like a man and say no.  The unfortunate part is that not just I had to pay and suffer for my stupidity but my family did too.  And that’s the regret and embarrassment that I live with everyday.
I have gone through the Coast Guard to obtain my Merchant Marine License, so that I can join and be apart of the Millitary Sealift Command.  I have passed all requirements, all background checks, urinalists, and physicals.  But the one thing that holds me back is I need at least a general discharge to be excepted.  That is the second chance to serve my country that I am asking you for.  I was a good sailor, and I was squared away.  I am filled with Navy knowledge and I miss being haze gray and underway and that’s why I know I will be an asset to the Millitary Sealift Command.  
I do realize that you must receive letters like this all the time.  I do apologize for not having any evals or any other supporting paper work to show, due to a house fire, I lost most of my personal belongings.  Though I do have a reference: Chief Boatswainmate BMC J_ M_, currently stationed onboard the U.L.G. George Washington who will be happy to answer any questions about me you may have.
I do beg of you to find it in your hearts to realize my sincerity and to know I have learned a very valuble life lesson and give me a second chance by granting me a general discharge
	May God Bless You and Fair Winds and Following Sea’s.
			Sincerely,
					T_ S_ F_ (Applicant)

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	950525 - 951203	COG
	Active:   USNR		951204 - 010913	HON

Period of Service Under Review:

Date of Enlistment:  010914		Date of Discharge:  020927

Length of Service (years, months, days):

	Active:    06  09  23
	Inactive:  None

Age at Entry:  26			Years Contracted:  2

Education Level:  12			AFQT:  36

Highest Rate:  CBM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)	Behavior:  4.00 (1)		OTA:  3.86

Military Decorations:  None

Unit/Campaign/Service Awards:  ESWS, NCMM, CGMC, NE2, GC, NDSM, SS

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.  Discharged in Absentia.

Chronological Listing of Significant Service Events:

010914:	Applicant reenlisted for 2 years.

020807:	NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 020805, tested positive for “THC”.

020821:	NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substance.
Award: Forfeiture of $784.00 per month for 2 months, restriction and extra duty for 45 days, reduction to BM3.  No indication of appeal in the record.

020822:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020823:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

020826:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments:  BMSN F_ (Applicant) has a history with marijuana, as evidenced by his Department of Defense national agency questionnaire.  During a drug investigation, BMSN F_ (Applicant) denied involvement with marijuana or any other drugs; however, several witnesses testified that BMSN F_ (Applicant) had in fact used marijuana.  The accusation was proven true when BMSN F_ (Applicant) tested positive for marijuana.  His willful use of marijuana and denial of such use illustrates his total disregard for impact his actions have on his shipmates and himself.  His behavior is not compatible with the good order and discipline of the service.  His inability to conform to the standards and requirements of the Navy leave me no alternative but to recommend that BMSN F_ (Applicant) be separated from the Naval service with an Other than Honorable discharge.

020903:	COMCRUDESGRU 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 in absentia, on 20020927 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:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for violating UCMJ, Article 112a thus substantiating the misconduct.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate.  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.  

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