Author: CAP
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Docket No. ND01-00909

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

 ex-SMSN, USN
Docket No. ND01-00909

Applicant’s Request

The application for discharge review, received 010703, requested that the characterization of service on the discharge be changed to honorable or 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 020130.  After a thorough review of the records, supporting documents, 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank. 

Documentation

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

Four pages from applicant's service record
Copy of employee evaluation dated December 9, 1999

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	900430 - 901021	COG

Period of Service Under Review:

Date of Enlistment:  901022		Date of Discharge:  940318

Length of Service (years, months, days):

	Active:    03  04  27
	Inactive:  None

Age at Entry:  17			Years Contracted:  4

Education Level:  10 GED		AFQT:  57

Highest Rate:  SM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  0.00 (0)	Behavior:  0.00 (0)		OTA:  0.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SASM

Days of Unauthorized Absence:  None.

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

920702:	NJP for violation of UCMJ, Article 91: Disrespectful in language toward a petty officer on 23Jun92, violation of UCMJ, Article 92: Dereliction in the performance of duties to hold sunrise on 23Jun92.
	Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 30 days, reduction to SMSR.  Reduction suspended for 6 months.  No indication of appeal in the record.

920702:	Retention Warning from USS CLEVELAND:  Advised of deficiency, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.  

930326:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order on 4Mar93 by wrongfully leaving the ship.
	Award: Forfeiture of $500 per month for 2 months, restriction and extra duty for 30 days, reduction to SMSN.  Reduction suspended for 6 months.  No indication of appeal in the record.

930327:	Retention Warning from USS CLEVELAND:  Advised of deficiency, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.  

940107:	NAVDRUGLAB, San Diego, CA reports applicant's urine sample, received 931228, tested positive for THC.

940121:	NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substance.
	Award: Forfeiture of $520 per month for 2 months, restriction and extra duty for 45 days, reduction to SMSN.  No indication of appeal in the record.  [Extracted from Commanding Officer's letter dated 940215.]

940126:	USS CLEVELAND (LPD 7) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse, commission of a serious offense and a pattern of misconduct as evidenced by your nonjudicial punishments dated 2 July 1992, 26 March 1993 and 21 January 1994.

940126:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to make a statement.

940215:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, commission of a serious offense and a pattern of misconduct.

940311:	BUPERS 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 940318 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 applicant introduced no decisional issues for consideration by the Board.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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, an error or injustice 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, may be considered by the NDRB.  The applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record.  Relief is not warranted.

The applicant remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is recommended. 

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C, Change 5, effective 05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT. 

B.  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.  

C.  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.

D.  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 “afls10.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/A0100/A9500/A9221