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

  ex-SMSA, USN
Docket No. ND05-00487

Applicant’s Request

The application for discharge review was received on 20050131.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general (under honorable conditions).  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Respectfully request upgrade to honorable conditions, to allow reenlistment to U.S. Navy and to be able to make things right to my country and to myself.  I have been a civilian for ten years and have regretted my actions for just as long.  I was naive to what I was doing and my decision was based upon reasons that shouldn’t have ever existed.  My first enlistment was honorable conditions as was my second up until a few months before leaving the service.  I would like to reenlist to active duty.”

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)	880929 - 890710	COG
	Active:   USN			890711 - 930512	HON

Period of Service Under Review:

Date of Enlistment:  930513		Date of Discharge:  950104

Length of Service (years, months, days):

	Active:    01  07  22
	Inactive:  None

Age at Entry:  21			Years Contracted:  4*

Education Level:  12			AFQT:  36/46

Highest Rate:  SM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (4)		Behavior:  3.45 (4)		OTA:  3.65

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC, KLM, GCM, SASM with 2 Bronze Stars, SSDR (3), NDSM

Days of Unauthorized Absence:  None

*Applicant’s reenlistment contract was not found in service record.  Length of reenlistment extracted from Commanding Officer’s letter dated 941202.

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

930513:	Applicant reenlisted for 4 years.

940526:	NJP for violation of UCMJ, Article 111:  Operating a vehicle while under influence of alcohol on 940316.
	Award: Forfeiture of $350 per month for 1 month, reduction to E-3.  Reduction suspended for 6 months.  No indication of appeal in the record.

940720:	Retention Warning:  Advised of deficiency (Operated a vehicle while under the influence of alcohol on 2342, 9403l6.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

941104:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 941101, tested positive for amphetamines/methamphetamine.

941115:	CAAC:  Applicant evaluated as non-drug dependent.  [Extracted from Commanding Officer’s letter dated 941202.]

941121:	Suspended reduction in rate awarded at Commanding Officer’s NJP of 930526 vacated this date.

941122:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance on 941031.
	Award: Restriction for 14 days, reduction to E-2.  No indication of appeal in the record.

941129:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse, alcohol abuse rehabilitation failure, and misconduct due to commission of a serious offense as evidenced by all nonjudicial punishments in your current enlistment and use of controlled substance following completion of Level II rehabilitation treatment program.  Applicant notified that if separation is approved, the least favorable characterization of service possible is under other than honorable conditions.

941130:	Applicant advised of rights and having consulted 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.  The Applicant did not object to the separation.

941202:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, alcohol abuse rehabilitation failure, and misconduct due to the commission of a serious offense.

941221:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950104 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  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 evidence of record indicates that the Applicant’s service was marred by drunk driving, illegal drug use, and an alcohol rehabilitation failure.  This misconduct resulted in two separate nonjudicial punishment proceedings for violations of UCMJ Articles 111 and 112a, both of which constitute a serious offense under applicable regulations.  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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

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 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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 111, drunken or reckless operation of vehicle, aircraft or vessel, and 112a, wrongful use, possession, etc., of controlled substances, if adjudged at a Special or General Court-Martial.

C.  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.

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

E.  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