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

 ex-MS3, USN
Docket No. ND04-00592

Applicant’s Request

The application for discharge review was received on 20040225.  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 20041001.  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:

“To whom it may concern:

Dear Sir or Mama
I realized that I made a mistake that cost me my career and I regretted is been almost 6 years since my discharge and I miss my military life, if my discharge is upgraded I will try to be part of the naval reserve if is possible.  I will be very grateful if something positive comes out of this review.  Thank you.”

Documentation

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

Letter from Applicant

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	850611 - 850819	COG
	Active:   USN			850820 - 890818	RELAD (HON)
	Inactive: USNR		890819 – 910221	HON
Inactive: USNR (DEP)	910222 - 910303	COG
Active:   USN			910304 - 951116	HON
Period of Service Under Review:

Date of Enlistment:  951117		Date of Discharge: 980323

Length of Service (years, months, days):

	Active:    02  04  06
	Inactive:  None

Age at Entry:  30			Years Contracted:  4 

Education Level:  12			AFQT:  41

Highest Rate:  MS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)		Behavior:  3.00 (1)		OTA:  3.14

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR(2), SASM, NAM, GCM(2), NMCM

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:

951117:	Reenlisted onboard USS CONSTELLATION (CV-64) for 4 years.

971009:	NAVDRUGLAB, SAN DIEGO, CA, reported Applicant’s urine sample, received 970930, tested positive for methamphetamine.

971110:	Applicant interviewed at the Naval Station Clinic of the Substance Abuse Rehabilitation Department (SARD), Naval Medical Center, San Diego by a Licensed Independent Provider as it was determined that the applicant did not appear to meet diagnostic criteria for alcohol dependency per the Diagnostic and Statistical Manual of Mental Disorder (DSM IV).  Recommended Applicant be returned to full duty.

971113:	Civil Conviction:  [Municipal Court of California, County of San Diego, South Bay Judicial District] for violation of California Vehicle Code (CVC 23152(b))-Driving with a BAC of .08% or more.
Sentence:  Serve 48 consecutive hours in County Jail (Report to custody on 971206); pay $1,560.00 in fines; attend and successfully complete PREVENT; receive probation for 3 years; submit written proof of MAAS impact Completion to the Court by 971215; and don’t drive within 24 hours of drinking alcohol or when there is alcohol in blood or odor of alcoholic beverage on breath.

980202:	NJP for violation of UCMJ, Article 112a: Did, at or near San Diego, California, on or about 970930 wrongfully use methamphetamine.
Award:  Forfeiture of $717.00 pay per month for 1 month, reduction to E-4.  No indication of appeal in the record.

980202:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your CO’s NJP of 980129, in which you were found guilty of the illegal and wrongful use and/or possession of a controlled substance; and misconduct due to civilian conviction of 971113, in which you were found guilty of violation of California Vehicle Code (CVC 23152 (b))- Driving with a BAC of .08% or more.

980202:	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.

980224:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to a civilian conviction.

980313:	BUPERS 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 19980323 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:  There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

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.  

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.  

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), Change 18, effective 12 Dec 97 to 19 May 99, 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