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

ex-MSSA, USN 
Docket No. ND04-01314

Applicant’s Request

The application for discharge review was received on 20040818.  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 20041222.  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 considered 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 feel I would be a help to the military at this point because of the education and lessons I’ve learned from my short service with the military and schooling I’ve picked up since.  I feel I was in a bad situation while serving in the Navy.  I had been told stories about the “Filipino Mafia” who were in charge of every S-2 Division Navy-wide. I never believed it until I saw it for myself.  Going to MS “A” school was the beginning of it all.  The person in charge of the school at the time was Filipino and awarded an undeserving person in our class and award that promoted her to E-4 right out of school, and she just so happened to be of the same race (Filipino)
Next, when I was assigned my first duty station, I walked into my division office and my Chief, Senior Chief, and Master Chiefs were all Filipino.  I began to believe this story I was being told.  I went to work in the galley after the innitial indoctrination took place and a few month after I began to work I requested leave.  I was told my leave was approved and came back to find out my division had counted me AWOL.  Instead of my Chief stepping forward and admiting he had never submitted my leave chit, I was punished and my DD 214 was tarnished.  This is one of many stories on how I was discriminated against and how the marale within the S-2 division is run into the ground.  I only regret choosing the S-2 division, I never regret joining the military.  No matter what some papers say, I served honorably, with dignity, and am willing to serve again if the opportunity were ever to come about.  I have not touched marijuana since I was caught with it on my possession, it was the outlet I turned to because I was only 19 and unable to drink alcohol.  I feel if the opportunity to serve again was brought my way, the military would not regret it.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000522 - 000521	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  000522		Date of Discharge:  010531

Length of Service (years, months, days):

	Active:    01  00  10
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  56

Highest Rate:  MSSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)	Behavior:  1.00 (1)		OTA:  2.00

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  5

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:

001208:	NJP for violation of UCMJ, Article 86: Absent from unit on 001127 to 001201.
	Award: Forfeiture of $400 per month for 1 month, restriction and extra duty for 23 days.  Forfeiture of $400 for 1 month, restriction and extra duty for 15 days suspended for 90 days.  No indication of appeal in the record.

001208:	Retention Warning: No further information found in service record.  [Extracted from Commanding Officer’s letter dated 010501]

010212:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 92:
	Specification: Violating a lawful general regulation by bringing drug paraphernalia on board a naval vessel.
	Charge II: violation of the UCMJ, Article 112a:
	Specification: Wrongful use and possession of marijuana on board a naval vessel.
	Finding: to Charge I and II and the specifications thereunder, guilty.
	Sentence: Forfeiture of $688.00, confinement for 24 days, confinement on bread and water for 3 days.  [Extracted from Commanding Officer’s letter dated 010501]
	CA action:  Not found in service record.

010228:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense and misconduct due to drug abuse.

010228:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

010501:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense and misconduct due to drug abuse.

010524:	Commander, Cruiser-Destroyer Group ONE 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 20010531 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:  The Applicant has not provided any evidence to support his claim of discrimination.  There is credible evidence in the record that the Applicant used and possessed 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 Applicant’s service record is marred by award of nonjudicial punishment (NJP) for violating the UCMJ, Article 86 and summary court-martial for violating the UCMJ, Articles 92 and 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, demonstrating he was unsuitable for further service.  An upgrade to 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.

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), Change 31, dated 20 Feb 01, effective 12 Feb 2001 until 15 Jul 2001, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023