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

FOR OFFICIAL USE ONLY

 ex-ITSN(SW), USN
Docket No. ND06-00894

Applicant’s Request

The application for discharge review was received on 20060620.  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 20070405.  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.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity – Quality of service

Equity – Personal problems

Equity – Post service

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 2)
Letter to Board for Correction of Naval Records, dated April 23, 2007 (2 pages)
Applicant’s commendation from USS BATAN LHD 5
Applicant’s citation from Commander Task Force FIVE ONE
Character Reference ltr from M_ Z_, Network Manager, EMG Acquisition Group LLC, 	dated April 21, 2006
Character Reference ltr from M_ S_, dated April 21, 2006
Character Reference ltr from D_ C_, dated April 21, 2006
Nassau County Police Department criminal records check, dated July 14, 2006
Character Reference ltr from C_ W. E_, dated July 31, 2006
Character Reference ltr from M_ A_ T_, dated July 19, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20001207 - 20010603	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010104		Date of Discharge:  20040709

Length of Service (years, months, days):

	Active:    03  06  06
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  72

Highest Rate:  IT2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.2 (4)			Behavior:  2.8 (4)		OTA:  3.57

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon(2), Navy Unit Commendation(2), Good Conduct Medal, Battle “E” Ribbon, Letter of Commendation(3)

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: 

010105:	Recruit Mental Health, Naval Hospital Great Lakes, IL.  SR (Applicant) interviewed and evaluated this date.  On basis of reported history, interview and assessment data, and behavior observed while at RTC, it has been determined that the SR is returned to duty.  Mental status exam is within normal limits.  Individual was thoroughly assessed to rule out suicidal and homicidal risk and has denied any present thoughts or intended gestures or plans.  The SR was educated as to condition this date.  Diagnosis(es): Axis IV 62.2 Occupational Problem; Axis II: V71.09 No Diagnosis Offered on Axis II.
	Recommendations:  Return to duty.

040611:	NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substance.
	Award:  Forfeiture of $797.00 per month for 2 months, restriction and extra duty for 45 days, reduction to ITSN.  No indication of appeal in the record.

040709:	DD Form 214:  Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse, authority:  MILPERSMAN 1910-146.

Service Record did not contain the Administrative Discharge package.  
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040709 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).

Equity – Quality of service:  The Applicant contends that his discharge should be upgraded because he was an excellent Sailor, he was never in trouble, and that he received many commendations and awards.

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 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.  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 a characterization of service of under other than honorable conditions.  The Applicant’s drug use resulted in nonjudicial punishment proceedings for violation of Article112a 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 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.  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.

Equity – Personal problems:  The Applicant contends that he under many pressures with family life, “other things”, and that he acted irrationally.

While he may feel that these “pressures” were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered.  The Applicant provided four letters of recommendation addressed to the National Guard, a criminal records check, and a letter from his mother as documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and evidence of drug free existence.  The Board determined that the documentation provided by the Applicant did not sufficiently mitigate the misconduct that resulted in the characterization of discharge.  Therefore, no relief will be granted.  

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.  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 28 April 2005, 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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