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

 ex-AR, USN
Docket No. ND04-00627

Applicant’s Request

The application for discharge review was received on 20040304.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  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 20041008.  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 was charged with the following while on Active Duty in the Navy:
a.  Underage Drinking
b.  Missing Formation
c.  Writing bad checks

2.  I joined the military for the wrong reasons, I was young, immature, and thought I had all the answers.  When things were not done my way when I wanted them, I reacted inappropriately by breaking regualations.  I wanted out of the Navy at that time because I was tired of the rules and being told what to do, I asked what was the fastest way out and I did what they told me. 

3.  I am a 22 year old man who realized that we need rules and regulations in order to make our society and this country what it is today.  I respect those who abide and enforce those rules and regulations.  I am wanting to rejoin our Armed Forces to help our Country reamin free from terrorism.  I have learned from the mistakes I made in the past and I want to become a better person by learning discipline, respect, courage, and honor.

4.  I want to join the United States Army to learn and instill the Seven Army Values.  I am asking for a second chance to become an upstanding member of our society.”

Documentation

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

Applicant’ s DD Form 214 (Member 4 and 1)

PART II - SUMMARY OF SERVICE

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

	Inactive: USN (DEP)	000226 - 000529	COG
	Active:   None	

Period of Service Under Review:

Date of Enlistment:  000530		Date of Discharge:  011025

Length of Service (years, months, days):

	Active:    01  04  06
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  34

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)	Behavior:  3.00 (1)		OTA:  2.67

Military Decorations:  None

Unit/Campaign/Service Awards:  None

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:

001117:	NJP for violation of UCMJ, Article 92 (Charge I):  Failure to obey order or regulation.  
Charge I (specification):  AR W_ R_ (Applicant), while on active duty, did, having knowledge of a lawful order issued by the Commanding Officer, Naval Air Station, Lemoore, to wit: NASLEMINST 1700.3E, paragraph 8 (a), dated 980803, an order which it was his duty to obey, did at 2450A Kearsarge Ace., NAS Lemoore Base Housing, on or about 981020, fail to obey the same by wrongfully consuming alcoholic beverages while being under the age of 21.
Charge II:  Violation of UCMJ, Article 131, (specification): In that AR W_ R_ (Applicant), U.S. Navy, Strike Fighter Squadron 122, did on or about 001116, in Executive Officer Investigation, under penalty of perjury pursuant to section 1746 of title 28, Unites States Code, willfully and corruptly subscribed a false statement material to the matter of inquiry to wit: Did not have alcohol in his vehicle, which statement was false in that he did have alcohol in his car which statement he did not then believe to be true.  [Extracted from CO’s Ltr, Strike Fighter Squadron ONE TWO TWO dated 011017.]
		Award:  Forfeiture of $502.00 per month for 2 months.

010731:	NJP for violation of UCMJ, Article 123: Uttering checks without sufficient funds.  In that, AA R_R_(Applicant), U.S. Navy, Strike Fighter Squadron 122, on active duty, did, during the months of April and May 2001, with intent to defraud and for the procurement of currency, wrongfully and unlawfully utter a certain check upon the Navy Exchange in words and figures as follows, to wit: $860 in checks, then knowing that he, the maker thereof, did not or would not have sufficient funds or credit for the payment of the said checks in full upon its presentment.
Award:  Forfeiture of 521.00 per month for 2 months (suspended).  Reduction to E-1 (suspended) and 45 days extra duty.  [Extracted from CO’s ltr, Strike Fighter Squadron ONE TWO TWO dated 011017.]

010906:	Retention Warning:  Advised of deficiency (NJP on 010731 for violations of UCMJ Article123: Uttering checks without sufficient funds), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010906:	Suspended punishments for mast that took place 010731 are vacated as of 010906.  Suspended punishments:  To forfeit 521.00 per month for 2 months, reduction to E-1.

010906:	NJP for violation of UCMJ, Article 86: Unauthorized absence, specification:  In that Airman Apprentice W_ R_ (Applicant), on active duty, US Navy Strike Fighter Squadron ONE TWO TWO, Lemoore, CA did on or about 1445, 010808 fail to attend his place of duty, to wit: VFA-122 Awards Quarters and remained absent until 0700, 010809.
Award:  60 days of restriction. [Extracted from CO’s Ltr, Strike Fighter Squadron ONE TWO TWO dated 011017.]

010920:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 010910, tested positive for amphetamine and methamphetamine.

011009:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible is Under Other Than Honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse.

Unknown:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.  [Second page of the election of Rights not contained in service record.]

011017:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse.  Commanding Officer’s comments (verbatim): AR R_ (Applicant)s financial history involving indebtedness to his fellow service-members and fraudulent bad checks illustrate flaws that are beyond the Navy’s capability and responsibility for rehabilitation.  His positive Drug Lab results for methamphetamines following a Command Urinalysis leaves me no other recommendation for discharge but under Other Than Honorable Conditions.

011022:	Commanding officer, Naval Air Station, Lemoore 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 20011025 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 1-2:  The Applicant states that he was young and immature during his time of service. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  Characterization of service as other than honorable is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by the award of nonjudicial punishment (NJP) on 3 occasions for violations of Articles 86, 92, 123, and 131 of the Uniform Code of Military Justice (UCMJ).  In addition, 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.  The Applicant’s conduct and proficiency markings, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an under honorable (general) characterization of service.  An upgrade to honorable would be inappropriate.  Relief is therefore denied.

Issues 3-4:  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.  

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 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