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

FOR OFFICIAL USE ONLY

ex-AMAN, USN
Docket No. ND06-00525

Applicant’s Request

The application for discharge review was received on 20060228.  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 20070110.  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 12c, Net Active Service This Period, should read:  “04  08  07,” and Block 24, Character of Service, should read:  “UNDER OTHER THAN HONORABLE CONDITIONS.”  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:

“ISSUE #1. I believe my discharge was inequitable because it was based on one isolated incident in 55 months of service with no other adverse action

ISSUE #2. If my request for discharge change is approved would you please consider changing my RE-code so that I would have an oppurtunity to serve again”

Documentation

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

Applicant’s statement, dtd February 10, 2006
Letter of recommendation from J_ A_ S_, Vice-Principal, D_ High School, dtd February 1, 2006
Job/Character Reference ltr from K_ S_, P_ Construction, dtd February 6, 2006
Character Reference ltr from A_ S_, Property Manager, R_ V_ Apartments, dtd January 31, 2006
Character Reference ltr from T_ S_, undated
Character Reference ltr from L_ J_, dtd January 28, 2006
Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19980605 - 19980804	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19980805		Date of Discharge:  20030411

Length of Service (years, months, days):

	Active:    04  08  07
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4

Education Level:  12				AFQT:  42

Highest Rate:  AM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (5)		Behavior:  3.2 (5)		OTA:  3.64

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy Good Conduct Award for period ending 01AUG04; National Defense Service Medal; Armed Forces Expeditionary 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: 

030326:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 030321, tested positive for THC.

030328:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
	Specification: In that Aviation Structural Mechanic Third Class W_ A. W_ (Applicant), U.S. Navy, Strike Fighter Squadron THREE FOUR, on or about 030317, wrongfully use THC (marijuana) a Schedule I controlled substance.
	Award:  Forfeiture of $764.00 per month for 2 months, restriction for 60 days, reduction to E-3.  No indication of appeal in the record.

030328:	Applicant notified of intended recommendation for discharge with the least favorable characterization of discharge as under other than honorable conditions by reason of misconduct-drug abuse.

030328:	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.

030329:	Applicant found medically qualified for separation.

030330:	Applicant submits statement in response to proposed separation.  Applicant’s comments:  “Dear Sir, I have written this letter to respectfully request to receive the best discharge, I possibly could.  The Navy has been good to me and I regret deeply for breaking my contract.  I ask that you review my record, and you will find that in the four years and seven months of my enlistment I have been in no trouble and have received good conduct.  I did not realize the severity of my action until it was too late and I am truly sorry, I very much want to be a productive member of society, thank you for any consideration you might give this situation
Very respectfully,
(signed)
W_ A. W_ (Applicant)”

030331:	Commanding Officer, Strike Fighter Squadron THREE FOUR, recommended discharge under other than honorable conditions by reason of misconduct - drug abuse.  Commanding Officer’s comments:  “AMAN W_ (Applicant is unfit for military life ashore or afloat.  Having been on board VFA-34 for 1 year and 10 months, AMAN W_ appeared to be living up to the Navy’s rules and regulations and adjusting to military life.  Unfortunately, he tested positive for THC (29 NG/ML), nearly two times the DOD established cut-off level for THC (29 NG/ML, following Unit Sweep Urinalysis Testing on 030317.
	On 030328, AMAN W_ was awarded punishment at CO’s NJP for results of his positive urinalysis.  After receiving his Article 31b rights, he admitted to use of marijuana.  His actions and willful use of marijuana illustrate a complete contempt for his shipmates and the Navy.
	AMAN W_’s behavior and judgement are totally incompatible with the good order and discipline of the naval service.  He has failed to comply with the Navy’s zero tolerance drug policy and has shown that he cannot meet the standards expected of military service.  I feel he has no potential for further military service and his offense warrants an administrative separation from the naval service by reason of Misconduct - Drug Abuse and that his characterization of service be under Other Than Honorable Conditions.”

030404:	COMNAVAIRLANT Norfolk, VA, 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 20030411 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).  The Board presumed regularity in the conduct of governmental affairs (E).  

The Board presumed regularity regarding the fact that the Applicant was discharged approximately 9 months after the end of the end of his initial 4 year enlistment contract, with no specific documentation in his service record showing that he re-enlisted or had his enlistment extended.  The Board did note that the Commanding Officer’s recommendation indicated that the Applicant’s EAOS was 20030504 and presumed that the Applicant had been properly extended on active duty either by re-enlistment or extension of enlistment.  

The Applicant states his discharge was based on one isolated incident in “55 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 Uniform Code of Military Justice, for his illegal drug use, thus substantiating the misconduct for which he was separated.  The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violations of Article 112a are considered serious offenses and a punitive discharge is authorized if adjudged at a special or general court-martial.  Regulations limit the Board’s review to a determination of 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.

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.  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.  

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 sufficient 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.

E.  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