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

 ex-MSSR, USN
Docket No. ND05-00222

Applicant’s Request

The application for discharge review was received on 20041117.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a documentary record review.  The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050201.  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 RESPECTFULLY REQUEST AN UP GRADE TO BE RE ASIGNED TO MY POST.  I NEED THE VALUES AND GOALS THE NAVY GAVE TO ME AND I WANT TO SERVE MY COUNTRY HONORABLE.  I NEED THIS BECAUSE IF ALOUD BACK; TO BECOME A BETTER PERSON!  THE ONLY REASON WHY I DID WHAT I DID BECAUSE OF MY FAMILY WAS HAVING PROBLEMS.  I COULD NOT TAKE THE ABUSE FROM WIFES PARENTS.  COULD NOT TAKE THEM TELLING MY CHILD I DID NOT CARE ABOUT HER.  PUTTING ME DOWN FOR SERVING.  MOST OF ALL EATING ALL MY FAMILIES FOOD AND PUTTING MY WIFE DOWN.  BUT NOW THATS ALL CHANGED SINCE THEIR SUN IS IN THE ARMY. AND I TAUGHT MY WIFE HOW TO FIGHT BACK USING HER MIND AND CONFIDENCE THAT WAS STRIPPED AWAY FROM HER BY THEM.  IF I KNEW THE OPTIONS BEFORE HAND THIS WOULD NEVER WOULD OF HAPPENED.  (AS FAR AS HELP WITH FAMILY THAT LED TO THIS DEMISE)  I WILL NOT FAIL AGAIN!”

Documentation

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

Applicant’s DD Form 214  (Member requests copy 4)
Letter from Substance Abuse Rehabilitation Department (SARD), Naval Medical Center 
   San Diego, dated December 11, 2003
Applicant’s Evaluation Report & Counseling Record, period 03 Aug 07 to 04 Jan 07
Eight pages from Applicant’s Medical Record 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930205 – 930221	COG
	Active:   USN			930222 – 930302	ELS (Error Enl)
Inactive: USNR (DEP)	030124 - 030319	COG
	
Period of Service Under Review:

Date of Enlistment:  030320		Date of Discharge:  040107

Length of Service (years, months, days):

	Active:    00  09  18		Inactive:  None

Age at Entry:  30		Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  50

Highest Rate:  MSSR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)		Behavior:  1.00 (1)		OTA:  2.20

Military Decorations:  None

Unit/Campaign/Service Awards:  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 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

030124:	Initial enlistment contract documents admission of pre-service drug abuse.  Enlistment waiver was granted. Applicant briefed upon and certified understanding of Navy policy concerning illegal use of drugs. (Note:  Applicant previously discharged from the Navy with an Entry Level Separation (ELS) due to erroneous enlistment into the naval service as evidenced by unrevealed pre-service drug abuse.)

031212:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 031205, tested positive for cocaine.

031215:	Applicant charged with Violation of UCMJ Article 112A:  Wrongful use of controlled substance.

031216:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

031216:	Applicant advised of rights and having elected not to consult 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.

031219:	NJP for violation of UCMJ, Article 112A:  In that Mess Management Specialist M_ F. M_ (Applicant), U.S. Navy, Precommissioning Detachment MOMSEN, Fleet Training Center, San Diego, California, on active duty, did, at or near San Diego, California, on or about December 2, 2003, wrongfully used a controlled substance.  
Award:  Forfeiture of $575.00 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

031219:	Restriction Orders issued to Applicant.

031224:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments (verbatim):  Processing in the case of MSSR M_ F. M_ (Applicant) was initiated subsequent to his CO’s Nonjudicial Punishment for violation of the UCMJ, Article 112a – Wrongful use of controlled substance.  MSSR M_ (Applicant) is aware of the Navy’s Zero Tolerance Policy on drugs.  A hindrance to good order and discipline, he is recommended for an expeditious separation from the Navy with an Other Than Honorable Discharge by reason of Misconduct due to Drug Abuse.

031231:	Commander, Naval Personnel Development Center, 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 20040107 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:  Concerning the Applicant’s desire to be “allowed back in,” 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.  This issue does not serve to provide a foundation upon which the Board can grant relief. 

In the Applicant’s case, the Board discovered no impropriety or inequity and considers his to be discharge proper and equitable. A service characterization of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use.  The Applicant’s summary of service clearly reflects his disobedience of the orders and directives regulating good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to honorable 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 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, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.
 
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 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