Author: CAP
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Docket No. ND00-00073

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

 ex-AR, USN
Docket No. ND00-00073

Applicant’s Request

The application for discharge review, received 991019, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000616.  After a thorough review of the records, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I received an other than honorable discharge because of a UA - Unauthorized Absense.  I left the base, but do not remember for how long.  I went back to base willingly.  I strongly feel that I should have a general discharge.  I feel the military wanted to kick me out for any reason & they put undesirable on my discharge.  Please review my records.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	840412 - 840422	COG

Period of Service Under Review:

Date of Enlistment:  840423		Date of Discharge:  860123

Length of Service (years, months, days):

	Active:    02  02  01
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  74

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.90 (4)	Behavior:  3.00 (4)		OTA:  2.90

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR 

Days of Unauthorized Absence:  9

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

850611:	NJP for violation of UCMJ, Article 112A: Use of marijuana on 8May85.
	Award:  Forfeiture of $347 per month for 2 months, restriction and extra duty for 45 days, reduction to AA.  No indication of appeal in the record.

850720:	NJP for violation of UCMJ, Article 80: Attempt to steal government property on 25Jun85, violation of UCMJ, Article 86: Unauthorized absence from seven restricted men's muster from 11Jul85 to 18Jul85, violation of UCMJ, Article 90: Disobey lawful command on 10Jul85, violation of UCMJ, Article 134: Make false statement on 25Jun85.
	Award:  Forfeiture of $150 per month for 1 month, restriction and extra duty for 30 days, reduction to AR.  Reduction suspended for 6 months.  No indication of appeal in the record.

850724:	Retention Warning from USS NIMITZ (CVN 68):  Advised of deficiency (Minor misconduct.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

850729:	Drug and Alcohol Abuse Report: Marijuana abuse, one to three times per month, 1979-1985, ashore off duty.  Urinalysis May 1985.  SAC found applicant not dependent and recommended Level I treatment.  Commanding officer recommended retention and discipline/provide leadership guidance/provide onboard motivational education/counsel by SAC.  Comments: (Applicant) exhibits satisfactory potential for further naval service.  2 NJPs (1 drug related).

850819:	Vacate reduction to AR awarded at CO's NJP of 20Jul85.

850819:	NJP for violation of UCMJ, Article 86: Unauthorized absence from seven restricted men's musters from 21Jul85 through 19Aug85.
	Award:  Forfeiture of $310 per month for 1 month, confinement on bread and water for 3 days.  No indication of appeal in the record.

851129:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 1530, 5Nov85 to 0630, 15Nov85 (9 days/surrendered).
	Award:  Forfeiture of $314 per month for 1 month, restriction and extra duty for 30 days.  No indication of appeal in the record.

851210:	USS NIMITZ (CVN 68) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by three of more punishments under the UCMJ within the current enlistment, the latest offense having occurred while assigned to this command, misconduct due to commission of a serious offense as evidenced by disobey a lawful order, making a false statement and attempt to steal, and misconduct due to drug abuse as evidenced by wrongful use of a controlled substance.

851210:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

851223:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 14 men's musters from 29Nov85 to 22Dec85, violation of UCMJ, Article 112A: Wrongful use and possession of marijuana on 19Nov85.
	Award:  Forfeiture of $319 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

860107:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. 

860111:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 860123 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

In response to applicant’s issue 1, the Board found that in addition to the applicant’s numerous violations of UCMJ Article 86, the applicant also violated UCMJ Article112a (use and possession of marijuana),  Article 80 (attempt to steal government property), Article 90 (disobey a lawful command) and Article 134 (make false statement).  The Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby.  Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560, Change 10/85, effective 
16 Dec 85 until 05 Oct 86), Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT ‑ A PATTERN OF MISCONDUCT. 

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 90, for disobeying a lawful command, if adjudged at a Special or General Court-Martial.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6750/A9229/A9453/A9217/A9439/A9447