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

FOR OFFICIAL USE ONLY

ex-MSSR, USN
Docket No. ND06-00511

Applicant’s Request

The application for discharge review was received on 20060302.  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 20061214.  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 by reason of misconduct due to drug abuse.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 12a, Date Entered AD This Period, should read:  “02 OCT 22.”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I am requesting an upgrade from other than honorable discharge to General/Honorable conditions.  I admit my guilt and take full responsibility for my past behaviors.  However, I have matured and have a different frame of mind.  I want to make amends for my misconduct.  I was young and scared, most of all stressed and dumb.”

Applicant’s Remarks:  (Taken from the DD Form 293.)

“Our country is in need of good men to serve and protect.  I am willing to do just that, I pray that you will give me another opportunity to show you and my country my regret/sorrow for my past actions.  I appeal to you for mercy, as well as forgiveness.  Please give me another opportunity to prove I can be a good solider.  I want to enlist in the U.S. Army to serve my country.  By allowing me back into the military, I know I will be a blessing to others as well as myself you will not regret giving me another opportunity.  May God bless you and thanks in advance for your help.”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Service - 7)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20020627 - 20021221	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20021022		Date of Discharge:  20030513

Length of Service (years, months, days):

	Active:    00  06  22
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4

Education Level:  11				AFQT:  35

Highest Rate:  MSSR

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 Applicable

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: 

030303:	Retention Warning:  Advised of deficiency (Underage drinking.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030306:	Medical evaluation at 59th MDOS/MMCSA, Lackland, TX, Alcohol and Drug Abuse Prevention and Treatment Program by G_ A_, SSgt, USAF, Mental Health Technician, S_ D. C_, SSgt, USAF, CADAC, Mental Health Craftsman and G_ E. W_, Capt, USAF, BSC, Clinical Social Worker.
	S: Pt (Applicant) seen for initial assessment of alcohol use - underage drinking.
	Pt met 0 of 4 criteria for Etoh Abuse and 0 of 7 criteria for Etoh dependence.
	AXIS I: No diagnosis.
	AXIS II: No diagnosis.
	AXIS III: See OPMR.
	AXIS IV: Occupational problem.
	AXIS V: GAF = 64 at time of interview.
	Recommendations:  Seminar One educational and awareness program.
	Commander was briefed on results of this assessment.
	Plan discussed with patient, who agrees.

030415:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 030410, tested positive for THC.

030424:	NJP for violation of UCMJ, Article 112a:  (Wrongful use of a controlled substance).
	Specification: In that Mess Specialist Seaman Recruit, D_ L_ B_(Applicant), U.S. Navy, on active duty, did, in Denver, Colorado, on or about April 2003, wrongfully use marijuana, a schedule III controlled substance.
	Award:  Forfeiture of $600.00 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

030424:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable by reason of misconduct due to drug abuse.

030424:	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.

030430:	Commanding Officer, USS HUE CITY (CG 66), recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “MSSR B_(Applicant) was found guilty of UCMJ Article 112a, Wrongful Use of a Controlled Substance at Commanding Officer’s Non-judicial Punishment.  MSSR B_ was processed for Separation by reason of misconduct due to drug abuse from the Naval Service in accordance with MILPERSMAN 1910-010.  While on leave between duty stations MSSR B_ demonstrated poor judgement by conducting himself in a manner to peer pressure from “old” friends.  Once rooted in an environment of zero tolerance of wrongful drug use, I believe that MSSR B_ could develop the ability to exercise sound independent judgement when confronted with situations that challenge his loyalty to Navy regulations policies.  I strongly feel this individual will learn from his mistake and could become a productive member of our Navy.  It is because of the requirement to process for Administrative Separation that this package is being forwarded.  I recommend that he be separated with a characterization of service Under Other Honorable Conditions.”

030501:	Commander, Carrier Group SIX, 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 20030513 by reason of misconduct due to drug abuse (A and B) with a service characterization of under other than honorable conditions.  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).  

There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for Sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  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.  Relief denied.

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 violation of Article 112a of the UCMJ.  Violation of UCMJ Article 112a is considered a serious offense for which a punitive discharge is authorized if adjudged by a special or general court martial.  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.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the 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 any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  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 documentation to support any claims of post-service accomplishments or any additional evidence related to this 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.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a (wrongful use, possession, etc. of controlled substances).

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