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

  ex-AOAR, USN 
Docket No. ND05-00081

Applicant’s Request

The application for discharge review was received on 20041013.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a documentary record review.  The Applicant listed the American Legion as the representative on DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20040224.  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

No issues were submitted by the Applicant.

Issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

1.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application. 

In accordance with Title 32, CFR, Section 724.166 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

Review of the available records reflects that this former member earned the NDSM. He was awarded NJP on 020403 for VUCMJ, Articles 92, 112 and NJP on 020819 for VUCMJ, Articles 86, 87, 112a.  Following due process notifications, he discharged on 020830 Under Other Than Honorable Conditions due to misconduct as authorized by NAVMILPERSMAN, Article 1910-146.

Essentially, as noted on DD Form 293 attachment, this Applicant is requesting that his discharge be upgraded because he regrets his misconduct and would like to reenlist in the military.  He has submitted 1 page of additional documentation reflecting his interest in further education for consideration.

The American Legion’s 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, Section 1553 and set forth in Title 32, CFR, Part 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:

Applicant’s DD Form 214  (Service 2)
Letter from Applicant to M_ R_, Executive Secretary, undated (2 pages)
GED certificate awarded to Applicant, dated October 27, 2003
Letter from C_ D_, Admissions Officer of Aviation Institute of Maintenance, dated February 28, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)*	011031 - 011106	COG
	Active:   None		
	*First page of enlistment contract not contained in Service record
Period of Service Under Review:

Date of Enlistment:  011107		Date of Discharge:  020830

Length of Service (years, months, days):

	Active:    00  09  24
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  9			AFQT:  55

Highest Rate:  AOAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF**		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  30

**No marks found in Applicant’s service record

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:

020403:	NJP for violation of UCMJ, Article 92:  Failure to obey a lawful order, violation of UCMJ, Article 112:  Drunk on duty.
	Award:  Forfeiture of $652.00 per month for 2 months (one month suspended for 6 months) and 30 days of correctional custody.  [Extracted from CO’s letter of 28 August 02].

020403:	Retention Warning:  Advised of deficiency (CO’s Non-judicial punishment on 03 April 2002 for VUCMJ Article 92, Underage drinking and Article 112, Drunk on duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020814:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 020809, tested positive for THC.

020819:	NJP for violation of UCMJ, Article 86:  Unauthorized absence on or about 05JUL02 until 16JUL02 and 17JUL02 until 05AUG02; violation of UCMJ, Article 87:  Missing movement on or about 08 July 02; violation of UCMJ, Article 112a:  Wrongful use of marijuana.
Award:  Forfeiture of $577.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

020821:	Applicant notified of intended recommendation for discharge with least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.  Applicant did not object to the separation.

020821:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

020828:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.  Commanding Officer’s comments (verbatim):  AOAR K_ (Applicant) was awarded nonjudicial punishment on 19 August 2002 for absence from his unit, missing ship’s movement, and wrongful use of marijuana.  He pled guilty to marijuana use, even though he knew and understood the Navy’s zero tolerance policy on drug abuse.  He clearly has no regard for the Navy’s rules or regulations and I recommend he be separated Under Other Than Honorable Conditions.

020830:	Commander, Cruiser-Destroyer Group Five authorized 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 20020830 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 following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Relief denied.

A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by award of two nonjudicial punishment (NJP) proceedings for violations of UCMJ Articles 86 (Unauthorized absence), Article 87 (Missing ships movement), Article 92 (Disobey a lawful order), Article 112 (Drunk on duty), and Article 112a (Wrongful use of marijuana).  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.

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), 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