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

 
ex-FN, USN
Docket No. ND04-01043

Applicant’s Request

The application for discharge review was received on 20040614.  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 20041103.  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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “To Whom it May Concern

Dear To Whom It May Concern,

My greatest goal is to get back into the United States Navy.  I’m applying for upgrade in re-enlistment and re-enlistment code.  The following issues are the reasons I believe my discharge should be upgraded to Honorable.  I wish when I was first discharged, that I had pursued this issue further.  I was younger then, and really wasn’t thinking long-term in regards to the ramifications of what transpired.  I seeked Navy council three times, and the council told me it was an uphill battle that I probably would not win.  They stated that it didn’t make sense for me to fight it, because it was a drug related charge.  I felt like they didn’t even try to help me.  I wanted to still be with the United States Navy, with no desire to leave.  It had become my home and also my life.  I felt like I had no representation to state the facts of my case in a clear manner.  Since I’m older now I wish I had continued to try to seek the Navy’s council in a more aggressive manner.  One person told me to just let it go, so I did.  I truly wanted the case to be tried with my statement being documented.  When I was in the Navy, I demonstrated the ability and desire to be a good sailor.  My average conduct and efficiency ratings and behavior and proficiency marks were always pretty good.  I received 2 Battle E’s.  However, at different times in my life, my personal problems impaired my ability to serve at the best of my ability.  I have been a good citizen since I was discharged.  I write to you, with the hope that my statement will be taken into strong consideration.  I have enclosed several letters of recommendations stating that I am of strong character and beliefs.  My past record did not make me waiver from being a good man.  Any mistakes I made in my past were due to poor choices as a younger man, lacking direction.

Sincerely,

P_ K_ (Applicant)”

Documentation

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

Applicant’s DD Form 214
Letter from Senator of Illinois, dated April 26, 2004
Letter of recommendation, undated
Character reference from Lake Villa Township Supervisor, dated April 7, 2004
Character reference from Lake Villa Township, dated April 30, 2004
Character reference from Lake Villa Township Highway Department, dated April 29, 2004
Character reference from Administrative Assistant, Lake Villa Assessors Office, dated April 29, 2004
Character reference from employee at the Lake Villa Township Assessors Office, dated May 6, 2004
Character reference from Field Appraiser, Lake Villa Assessors Office, dated May 6, 2004
Character reference from Administrative Assistant, Lake Villa Assessors Office, dated April 29, 2004
Character reference from police officer in the Lake Villa area, undated
Character reference from Clinical Research Coordinator, undated
Letter of reference, undated
Applicant’s resumé
Certificate in Certified Nurse Assisting, dated December 2000
Letter to the Applicant from National Personnel Records Center, dated March 17, 2004
Fifty-three pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930520 - 930614	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  930615		Date of Discharge:  950615

Length of Service (years, months, days):

	Active:    02  00  01
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  65

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (2)	Behavior:  3.80 (2)		OTA:  3.70

Military Decorations:  None

Unit/Campaign/Service Awards:  BER, NDSM

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 3630620.

Chronological Listing of Significant Service Events:

930720:	You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service civil involvement.  Possession of drug paraphernalia, Jackson, MS, 8/90.  Paid $500.00 fine.  Possession of a controlled substance, Chicago, IL, 6/92, dropped.  Eluding police, Chicago, IL 6/92, dropped.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

931213:	Letter from Chief of Naval Personnel to USS YORKTOWN (CG-48) with Applicant’s arrest record.

940106:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of defective enlistment and induction due to fraudulent entry into naval service.

940109:	Applicant advised of rights and having consulted 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.

940110:	Commanding Officer recommended discharge under other than honorable conditions by reason of defective enlistment and induction due to fraudulent entry into naval service.

940401:	BUPERS message to USS YORKTOWN to reprocess Applicant for defective enlistments and inductions due to fraudulent entry into naval service using admin procedures in accordance with NAVMILPERSMAN 3640200.  Administrative processing is mandatory in accordance with NAVMILPERSMAN 3610260.6.

940411:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of defective enlistment and induction due to fraudulent entry into naval service as evidenced by failing to reveal your civilian involvement.

940412:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

940601:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, and by a vote of 2 to 1 recommended retention.

940603:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

940708:	BUPERS message advised TRANSITPERSU Norfolk, VA to prepare a page 13 Counseling/Warning.  No further action with regard to administrative separation contemplated.

940713:	You are being retained in the Naval service, in spite of your administrative discharge findings on 940701 which found that you had committed defective enlistment and induction due to fraudulent entry into the naval service, as evidenced by failing to reveal your involvement with the civilian authorities for a cocaine possession charge, armed robbery and contempt of court offense.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

950502:	NJP for violation of UCMJ, Article 112A: Substance abuse.
	Award: Forfeiture of $497.55 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

950502:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the drug incident in your current enlistment.

950502:	Applicant advised of rights and having consulted 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.

950502:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

950504:	Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty.  Abuse denied.  Random urinalysis 950405.  CAAC recommended separation.  Commanding Officer recommended separation.  Comments: FN K_ (Applicant) is being processed for administrative discharge.  He has no potential for future naval service.

950601:	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 19950615 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.  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.  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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, 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