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

FOR OFFICIAL USE ONLY

     ex-ETSN, USN
Docket No. ND05-01522

Applicant’s Request

The application for discharge review was received on 20050914.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  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 20060621.  After a thorough review of the 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 character 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 inequitable because it was based on one isolated incident in 34 months of service with no other adverse action.  I hope to be able to return to the fleet one day.  Respectfully request my discharge be upgraded to general.”

Documentation

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

Applicant’s DD Form 214  (Service 2)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20000831 – 20001017		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20001018		Date of Discharge:  20030815

Length of Service (years, months, days):

	Active:    02  09  28  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  21

Years Contracted:  4 (24 month extension)

Education Level:  GED		AFQT:  71

Highest Rate:  ET3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*			Behavior:  NA*			OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal.

* Not Available

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: 

030718:	NAVDRUGLAB, JACKSONVILLE, FL reported Applicant’s urine sample, received 030715, tested positive for cocaine.

030723:	Retention Warning:  Advised of deficiency (Misconduct under the UCMJ or conduct resulting in civilian conviction(s):  Article 112a, Wrongful use, possession, etc., of controlled substance), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030801:	NJP for violation of UCMJ, Article 112a:  Wrongful use of a controlled substance.
	Specification:  In that electronics technician Third Class B_ E. S_ (Applicant), USS COLE (DDG 67), Norfolk, VA, did, on board USS COLE (DDG 67), Norfolk, VA, on or about 9 July 2003, wrongfully use cocaine, a schedule 1 controlled substance, to wit: cocaine.
Award:  Forfeiture of $751.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

030801:	Commanding Officer, USS COLE (DDG 67), recommended to Commander, Cruiser Destroyer Group TWELVE, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “ESTN S_ (Applicant) has no future in the Naval Service.  The Navy’s policy regarding use of illicit drugs is clear, and is repeatedly emphasized on board USS COLE:  zero tolerance.  I most strongly recommend that ETSN S_ (Applicant) be separated from the Navy with his service characterized as Under Other Than Honorable.”

030806:	COMCRUDESGRU TWELVE, directed the Applicant's discharge under other than honorable conditions by reason of misconduct.

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030815 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant states his discharge was based on one isolated incident in “34 months.” 
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’s service record is marred by award of nonjudicial punishment (NJP) for violation of Article 112a of the UCMJ, wrongful use of illegal a controlled substance, thus substantiating the misconduct for which he was separated.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

For the edification of the Applicant, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces.  Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054.  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.  Relief on the basis of a desire to reenlist would be inappropriate.  Relief on this basis is 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.  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.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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