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

FOR OFFICIAL USE ONLY

 ex-MMFR, USN
Docket No. ND05-00795

Applicant’s Request

The application for discharge review was received on 20050407.  The Applicant requests his characterization of service received at the time of discharge changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051006.  After a thorough review of all available 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 characterization of the discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“My discharge was based on one incident, out of 18 months of honorable service.”

Applicant’s Remarks:  I would like to continue my naval career.  I spoke with recruiters, they told me to get a discharge upgrade and they would work with me. 

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20020430 – 20020609		
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020610		Date of Discharge:  20040108

Length of Service (years, months, days):

	Active:    01 06 29  (Does not exclude lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  30 days

Age at Entry:  24

Years Contracted:  4 

Education Level:  12				AFQT:  59

Highest Rate:  MMFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (2)		Behavior:  2.0 (2) 		OTA:  2.83

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Sea Service Deployment Ribbon.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events: 

020430:	Applicant briefed on Navy's policy of drug and alcohol abuse.  

020430:	Pre-service waiver for under the influence of controlled substance; petty theft; attempted unlawful taking of a vehicle - granted.  

031119:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 031114, tested positive for THC.

031125:	Summary Court-Martial.
	Charge:  Violation of the UCMJ, Article 112a:
	Specification: Wrongful use of marijuana.
	Finding:  Charge and the specification thereunder - Guilty.
	Sentence: Forfeiture of $800.00 pay per month for 1 month, reduced to E-1, 30 days confinement.
	CA action 031211:  Sentence approved and ordered executed.
	
031203:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct drug abuse.

031203:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

031222:	Commanding Officer, USS NIMITZ (CVN 68) recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “Fireman Recruit B_ (Applicant) is no longer fit for military service.  At a Summary Court-Martial held on 25 November 2003, he was awarded punishment for using marijuana.  He admitted to using marijuana for the sole purpose of getting out of the Navy.  Fireman recruit B_ (Applicant) knew the Navy’s zero tolerance policy of drug abuse.  He clearly had no regard for the Navy’s rules and regulation.  I recommend he be separated with a characterization of Other Than Honorable Conditions.”

031230:	Commander, Cruiser-Destroyer Group FIVE, directed 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 20040108 by reason of misconduct due to drug abuse (A) with a characterization of under other than honorable conditions.  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  

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 outweigh the positive aspects of the member's military record.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant was convicted at summary court-martial for a violation of UCMJ Article 112a (wrongful use of a controlled substance) substantiating the misconduct for which he was separated.  There is credible evidence in the record that the Applicant used illegal drugs.  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.  Processing for separation is mandatory for sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service of under other than honorable conditions.  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.  This issue is without merit.

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 credible evidence of a substance free lifestyle, proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Applicant provided no documentation.  

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), 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 V, Para 502, Propriety.

C.  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