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

  ex-STGSA, USN
Docket No. ND05-00458

Applicant’s Request

The application for discharge review was received on 20050125.  The Applicant requests the characterization of service received at the time of discharge 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 20050511.  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 am in the process of joining the Army and the only thing holding me back is the RE-4 code on my Naval discharge.  My recruiter says that if the RE-4 is changed to a RE-3, everything is okay.  It has been five years since my discharge and I have changed my life for the better.  I am committed to rejoining the military to make right what I wronged and have a career in the armed forces.  Your expeditions consideration in this matter would be greatly appreciated.”

Documentation

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

Applicant’s DD Form 214  (member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	981118 - 990802	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990803		Date of Discharge:  000414

Length of Service (years, months, days):

	Active:    00 08 12
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  80

Highest Rate:  STGSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB*			Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*One evaluation, “not observed,” reported at the time of discharge.

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:

981118:	Applicant acknowledged understanding of the policy concerning drug usage.  

981118:	Waiver granted for previous non-minor misdemeanors and previous use of marijuana.

990803	Applicant active duty.

991013	Applicant report to FLEASWTRACEN

000313	Applicant to unauthorized absence 0645.

000314	Applicant from unauthorized absence 0915.

000314:	Urinalysis test.

000320:	NAVDRUGLAB, San Diego, CA:  Present in Applicant’s service record but unable to read results, however per CO’s letter of 29MAR00, Applicant tested positive for cocaine & marijuana.

000322:	NJP for violation of UCMJ, Article 86 (1 Spec):  Absent from appointed place of duty from 0645, 000313 to 0915, 000314; violation of UCMJ, Article 90 (1 Spec):  Disobey a lawful order from a superior commissioned officer; violation of UCMJ, Article 107 (1 Spec):  false official statement; violation of UCMJ, Article 112A (2 Specs):  
Specification 1:  Wrongfully use of cocaine.
Specification 2:  Wrongfully use of marijuana.
Award:  Forfeiture of $563.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

000323:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible is under other than honorable conditions by reason of misconduct due to drug abuse.

000323:	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.

000329:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments (verbatim):  At or about 0645, 13 March 2000, STGSA B_ (Applicant) commenced a period of unauthorized absence and he did not return until at or about 0915, 14 March 2000.  Because of his unauthorized absence he was given a urinalysis test, which came back positive for marijuana and cocaine.  He received non-judicial punishment for those offenses and for disobeying a lawful command from a commissioned officer and making a false official statement.  STGSA B_ (Applicant)’s conduct has clearly shown that he is not fit for further military service.  He was aware of the Navy’s “zero tolerance” policy on drug use at the time he chose to use illegal drugs.  Therefore, I strongly recommend that he be separated from the Navy and that the characterization of his service be Other Than Honorable.

000331:	Chief of Naval Education and Training authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000407:	Substance Abuse Rehabilitation Department (SARD) medical evaluation:  Patient was referred to SARD after a positive urinalysis for THC & cocaine on 14 March 00.  The patient reports a lengthy drug use history pre service that he attempted to control after his enlistment.  He reports using cannabis and cocaine 2 times since enlistment 8 months ago.  This occurred while he visited his home on leave in March 00.  Pre service he reports using cannabis 5 times a week as much as a ½ gram per week, smoking in the morning and afternoon…..  While in the military he reports drinking alcohol 3 times a week often 2 40 grams beers and 10 mixed drinks on the weekends.  The most he recalls drinking is a fifth of rum.  The patient describes alcohol tolerance, loss of control, negative life style changes related to use.  The patient doesn’t think he has a problem with alcohol, but thinks his use of cannabis may have been a problem in the past.
	LIP Impression:  Cannabis Dependence Sustained Partial Remission (305.10).
	Alcohol Dependence (303.90).
	LIP Recommended Placement:  Intensive Outpatient Program.

000410:	Drug and Alcohol Program Advisor requested Medical evaluation to determine if Applicant medically fit to participate in substance dependence treatment.

000414:	DD Form 214 issued.  Applicant discharged by reason of misconduct for drug abuse under other than honorable conditions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000414 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:  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 a nonjudicial punishment proceeding for violations of Articles 86, 90, 107 and 112a of the UCMJ. 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 other than honorable discharge was proper and equitable.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge.  The Applicant's misconduct is clearly documented.  The Applicant acknowledged and waived his rights to administrative review.  The Applicant was notified that by waiving his rights and accepting an other than honorable discharge, he could possibly encounter significant difficulties in obtaining employment and other benefits.  The Applicant was afforded the appropriate due process during the processing of his case.  The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  As such, this Board presumed that Applicant’s discharge was regular in all respects.  An upgrade of the Applicant's discharge to a general under honorable conditions characterization is not warranted.  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.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 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 proof of educational pursuits, 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 documentation for the Board to consider.

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 27, effective 27 March 2000 - 11 Feb 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