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

 ex-SA, USN
Docket No. ND05-00002 

Applicant’s Request

The application for discharge review was received on 20040922.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to convenience of the Government.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation from Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050304.  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 and reason for 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:

1.  “To whom it may concern:

I, M_ D. B_ (Applicant), am writing to you in hopes and in prayer, that by chance, you will hear me out and see the good in me.

I know that you don’t have to give me an upgrade to my discharge, but I am coming to you, now realizing the mistake I have made, now being out of the military.  I realize that I have made the biggest mistake of my life.  It is very hard for me to move on from, and it is something that I may have to live with for the rest of my life.

I am not writing to blame anyone for my actions and my mistakes, because no one can take the blame but me.  I am the only one that can take the blame for what I did, I don’t want you to upgrade my discharge so that I can get money or any benefits or for a better job as a civilian.  I have wanted to be in the military since I was a little boy, an that is the only thing I want to do for the rest of my working life.  I just want to get one more chance to do the right thing.  I am a good person and a very hard worker and I am a veteran of a foreign war.  I was placed on shore duty at the time of my enlistment because of my age, and I requested to deploy to OIF (Operation Iraqi Freedom) twice and I was granted the request both times.  I love my country and the military that serves and protects it so much that I am willing to do anything to get the second chance I am asking for.  I know that I don’t deserve one, but hopefully you can see the good inside of me.

I am confessing to all my actions, taking full blame, and I have no evidence that I was in the right of my crimes I was charged with because I wasn’t in the right of anything.  I also realize that I have combat service and experience, fair conduct, awards, recommendations, very good evaluations, and BRAVO Zulu, but none of that matters when you make the mistakes and screw up like I did.  I can’t say that I didn’t deserve the punishment that I was given because that would be a lie I deserved everything I was given.

I screwed up the best thing that a person could have by coming home on leave from Operation Iraqi Freedom and getting caught up in my old ways and hanging out with my old friends and all the temptations were there.  I fell for them like a weak person and did some drugs and that was the worst thing I could have done.  I admit it, and I am ashamed of what I did, I even went U.A. and after a while being at home I decided that I wanted to do the right thing instead of the wrong thing.  I went back to California to face my punishment, and it broke my heart when I was discharged.  I am praying for a miracle for an upgrade on my discharge to “for the convenience of the government” and upgrade of my re-entry code so I can re-enlist.  Please find it in your heart to review my case, and give me a fair and just decision.

Please grant me this one last chance at a true and just life in the United States Military.

Thank you in advance for your time and consideration.

Sincerely,
[signed]  (Applicant)”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

2. “Propriety or Equity Issue(s):  The applicant’s transgressions were while he was in a leave status and while he regrets his action, he feels that they should not preclude his reenlistment in the armed forces.

Statement:  In accordance with 32 CFR § 724, and SECNAVINST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition.

The applicant requests that the Board afford him all due consideration regarding his request for a discharge upgrade and reenlistment code change which will allow him to enlist in the armed forces.  The applicant was wrong to abuse a controlled substance while he was home on leave from Operation Iraqi Freedom and he admits this.  He wants the chance to prove his fidelity by again serving his country, and to that effect he submits additional statements of character in support of his request.

The Veterans of Foreign Wars’ 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 USC § 1553, and set forth in 32 CFR § 724 and SECNAVINST 5420.174D.

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:

Ltr frm M_ D. B_ dtd 040824
Ltr frm M_ D_ W_ dtd 040823
Ltr frm R_ S. B_ dtd 040826
Ltr frm G_ S_ dtd 040826
Applicant’s list of civilian and military schools, duty stations
19 pages from Applicant’s medical and service records
Copy of Applicant’s birth certificate
Copy of Applicant’s Social Security card
Applicant’s DD Form 214
Diploma dtd 021010
Diploma dtd 020731
Copy of official GED transcript dtd 020918
Copy of official transcript from Gainesville Job Corps Center undtd

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	020621 - 021106	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  021107		Date of Discharge:  040524

Length of Service (years, months, days):

	Active:    01  06  18		[Does not exclude lost time]
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 

Education Level:  12	(GED)		AFQT:  39

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)		Behavior:  2.00 (2)		OTA:  2.44

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  31

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:

040401:	NAVDRUGLAB, SAN DIEGO, reported Applicant’s urine sample, received 040326, tested positive for [THC].

040503:	NJP for violation of UCMJ, Article 112a:  On or about 040322 wrongfully use marijuana, violation of UCMJ, Article 86: On or about 0650, 040402 absent himself from his unit and remain so absent until on or about 0700, 040502.
Award:  Forfeiture of $597 per month for 2 month(s), restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

040503:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse with the least favorable characterization possible as under other than honorable conditions.

040503:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

040505:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  

040510:	COMPHIBGRU THREE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040524 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.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge 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 nonjudicial punishment proceedings for violations of Articles 86 and 112a of the UCMJ.  The Applicant’s 31-day unauthorized absence is considered a serious offense. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated.  The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054.  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.  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), re-issued October 2002, effective 22 Aug 2002 until Present, 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