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Docket No. ND01-01108

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

 ex-SR, USN
Docket No. ND01-01108

Applicant’s Request

The application for discharge review, received 010821, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing discharge review before a traveling panel.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington, DC Area.  The Naval Discharge Review Board (NDRB) also advised that the Board first conducts a documentary review prior to any personal appearance hearing.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 020328.  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/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My issues I need to address is serious.  I was struck in my left eye.  My eye is severely damaged.  I lost sight in my eye.  I will never see again.  I also developed a hernia in my stomach.  I would like my benefits so I could go to the V. A to get this fixed. 

Documentation

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

Letter from Applicant

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	990811 - 990901	COG

Period of Service Under Review:

Date of Enlistment:  990902		Date of Discharge:  000224

Length of Service (years, months, days):

	Active:    00  04  11
	Inactive:  None

Age at Entry:  24			Years Contracted:  4 

Education Level:  12			AFQT:  46

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  19

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

000112:	Retention Warning:  Advised of deficiency (Article 86 x 8, fail to go at the time prescribed to his appointed place of duty; and unauthorized absence; Article 92 x 2, Disobey a lawful order issued by the Commanding Officer, to wit: by failing to turn in his liberty card at expiration of liberty; Article 121, Larceny), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

000112:	NJP for violation of UCMJ, Article 121: Larceny, violation of UCMJ, Article 86: (8 Specifications), Unauthorized absence, and fail to go, Spec 1: Did at Naval Training Center, Great Lakes, Illinois, on or about 991202, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0430 NMT Muster, Spec 2: Did at Naval Training Center, Great Lakes, Illinois, on or about 991203, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0430 NMT Muster, Spec 3: Did at Naval Training Center, Great Lakes, Illinois, on or about 991204, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 2145 NMT Muster, Spec 4: Did at Naval Training Center, Great Lakes, Illinois, on or about 991205, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 2145 NMT Muster, Spec 5: Did at Naval Training Center, Great Lakes, Illinois, on or about 991206, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0430 NMT Muster, Spec 6: Did at Naval Training Center, Great Lakes, Illinois, on or about 991207, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0430 NMT Muster, Spec 7: Did at U.S. Navy, Service School Command, Great Lakes, Illinois, on or about 0650 hours, 991213, without authority, absent himself from his organization, and did remain so absent until on or about 2215 hours, 991215 (for a period of 2 days, 15 hours, and 25 minutes), Spec 8: Did at U.S. Navy, Service School Command, Great Lakes, Illinois, on or about 0400 hours, 991217, without authority, absent himself from his organization, and did remain so absent until on or about 0800 hours, 000103 (for a period of about 17 days and 4 hours). Violation of UCMJ, Article 92: (2 Specifications), Failing to turn in his liberty card at expiration of liberty on 991202 and 991205. 
	Award:  Forfeiture of $502.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to next inferior pay grade (suspended for 6 months).  No indication of appeal in the record.

000131:	Medical evaluation for drug/alcohol abuse found that the applicant did not meet the criteria for drug and/or alcohol dependency.

000203:	The Commanding Officer's NJP of 000112 vacated due to continued misconduct.  

000209:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 112a: Wrongful use of a controlled substance (cocaine), violation of UCMJ, Article 134: Indecent assault upon another service member, wrongfully breaking restriction.
	Award:  Forfeiture of $502.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

000210:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct, misconduct commission of a serious offense and drug abuse. 

000210:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

000214:	Applicant to unauthorized absence.

000217:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use), pattern of misconduct, and commission of a serious offense. 

000223:	Commander, Naval Training Center, Great Lakes authorized the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged in absentia on 000224 under other than honorable conditions for misconduct due to drug abuse (use) (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).

Issue 1.  The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide any documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until 26 March 2000, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

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:  A6600/A9321/A9217/A9221