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

      ex-AD3, USN
Docket No. ND04-00070

Applicant’s Request

The application for discharge review was received on 20031014.  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 designated the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812.  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:

Issue 1.  “My discharge was inequitable because it was based on one isolated incident in 48 months of service with no other adverse action.

I E_ L_ (Applicant), was discharged by the Navy based on misconduct.  The reason I didn’t report the incident because I was scared.  Now that I realized the consequences I wish I would have did what was right and reported it.  I had a family and kids to take care and that was what I was worried about, how was I going to take care of them.  The Navy was my career.  Also if it is possible I would love to pursue my career in the Navy.  I love what my duties was and when I was discharge my whole life was over, and now I’m trying to get my life back together.

I’m hoping that this applicant will help get my life back together.  With this discharge, it is hard to find a job (Good Job).  I’m willing to do whatever to get this discharge change to honorable, and hopefully get my career back!  Also, I like to thank R_ S_ for being so helpful.  I was deciated to my career in the Navy.”

Additional issues submitted by Applicant’s representative (AMERICAN LEGION):

Issue 2.  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. 

________________________________________________________________________

In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

An administrative error is noted on DD Form 214.  This former member enlisted 961023 served honorably and reenlisted 010416.  Block 18 should include “Continuous Honorable Active Service from 961023 until 010415.”  For the Applicant’s edification, this amendment should establish eligibly for the Montgomery GI Bill educational benefits that he contributed to.  We suggest he contact the Department of Veterans Affairs for an official determination.

The service record is incomplete.  In particular, the discharge package is missing.  Review of the available records reflect that this former member maintained satisfactory performance markings with an overall individual trait average of 3.28 and earned the SSDR (2), AFEM, NDSM and GCM.  Based on the Applicant’s statement he was discharged for a civil charge of drug possession.  There is no indication of any other misconduct found in the record.  He was discharged Under Other Than Honorable Conditions due to misconduct as authorized by NAVMILPERSMAN, Art. 1910-146.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because he is not nor never has been a drug user. The marijuana found in his is vehicle was not his and he had no knowledge that it was there.  He has not submitted any additional documentation beyond his personnel statement and copies of his service record for the Board’s consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.

Documentation

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

Applicant’ s DD Form 214
Enlisted Evaluations 
Military Training Log
PREVENT Certificate, dtd 31 May 01
PQS Training Log
Certificate of Completion, dtd 03 May 01
Applicant’s personal letter

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960729 - 961022	COG
	Active:   USN			961023 - 010415	HON

Period of Service Under Review:

Date of Enlistment:  010416			Date of Discharge:  020614

Length of Service (years, months, days):

	Active:    01  01  29
	Inactive:  None

Age at Entry:  23			Years Contracted:  Unknown

Education Level:  12			AFQT:  35

Highest Rate:  AD3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)	Behavior:  1.00 (1)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (2), AFEM, NDSM, GCM

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:

020614:	Applicant discharged with an Other Than Honorable discharge for Drug Abuse (Extracted from Applicants DD Form 214)

NO DISCHARGE PACKAGE AVAILABLE

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020614 under other than honorable conditions for misconduct due to drug abuse (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1.  The Applicant states his discharge was based on one isolated incident in “48 months.” The Applicant’s service record is marred by a civilian conviction for drug possession.  Illegal drug possession warranted processing for separation.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  Relief denied.

The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

Issue 2.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment.   Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

The following is provided for the edification of the Applicant.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent 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, documentation of community service, and certification of non-involvement with civil authorities.  The Applicant has not provided sufficient documentation for the Board to consider.  Therefore, no relief will be granted.

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), 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 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

C.  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.

D.  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.  

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