Author: CAP
Last saved by: Department of the Navy
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Docket No. ND02-00886

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

ex-FR, USN
Docket No. ND02-00886

Applicant’s Request

The application for discharge review, received 020607, 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.  Subsequent to the application, the Applicant obtained representation from the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030311.  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 - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  Looking back at the time of service I was a young unconducted boy who was trying to do a man job and also I thought I could keep the wild street life in the military at the time I didn't know any better. Now that 10 years has pass I’ve made some really manly changes in my life like getting married keeping a stable job and most of all being a good father/role modle for my children we all attend church and on some weekends I gather with some of the kids in the community and take them to the park, fishing and just talking to them so they won't make the same mistakes I've made in life.  I tell them to obey their parents and respect all grown-ups stay in school and be the best that you can be, no matter what they choose or directions. They go, most of I tell them no matter what you will have to take orders form someone I've been doing for 6 1/2 yrs now.

Thanks for your cooperation.

Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on 8/23/2002 and the following comments are hereby submitted: The Applicant regrets his conduct while on active duty.  During post service, he has turned his life around, he has gotten married and is raising a family.  In addition he has a stable job. As further evidence of his chang L_ R_ speaks very highly of his character.

We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrading his discharge to General.

Documentation

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

Letter of recommendation dated February 26, 2002
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	881128 - 890108	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890109		Date of Discharge:  920429

Length of Service (years, months, days):

	Active:    03  03  21
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  22/28

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (2)	Behavior:  3.40 (2)		OTA:  3.30

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

Days of Unauthorized Absence:  5

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:

890111:	Applicant briefed on Navy's policy of drug and alcohol abuse.

890112:	Retention Warning from Recruit Training Command, Naval Training Center, Great Lakes, IL:  Advised of deficiency (Non-swim qualified), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900312:	NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 900227, tested positive for THC.

900325:	NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana.
	Award: Forfeiture of $360 per month for 2 months, restriction and extra duty for 45 days, reduction to FR.  No indication of appeal in the record.

900325:	Retention Warning from USS SAIPAN (LHA-2):  Advised of deficiency (Establishing a record of minor disciplinary infractions and a pattern of misconduct), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900505:	Drug/Alcohol evaluation: Doctor did not find that he has a drug or alcohol problem.  Applicant vehemently denies using THC, even with the positive U/A.  Recommendation is that he be returned to full duty and we shall be accountable for consultation at any time.

900506:	Drug and Alcohol Abuse Report: Marijuana abuse, random urinalysis 900325.  DAPA and physician found Applicant not dependent and recommended Level I treatment.  Commanding Officer recommended Level I treatment.  Comments: Incident considered to be isolated case with active participation with Level I program.  Member considered to have good potential for further service.
  
910408:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 0740, 910217 to 0730, 910719 (2 days/surrendered), (2) Unauthorized absence from 0715, 910222 to 0730, 910225 (3 days/surrendered).
	Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 21 days, reduction to FA.  Reduction suspended for 30 days.  No indication of appeal in the record.

910524:	DAPA Evaluation: Alcohol abuse/irresponsible use by history; states he does not feel Level II is necessary.  Plan: Concur with recommendation of Level II ARC.  In light of pt's lack of enthusiasm Level I may be more efficient.
 
910729:	NJP for violation of UCMJ, Article 121: Larceny of a tire and chrome rim.
	Award: Forfeiture of $300 per month for 1 month, reduction to FR.  No indication of appeal in the record.

911002:	Alcohol dependency evaluation:  Substance dependence on alcohol.  Recommend Level II or Level III, favoring Level II.

911025:	NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample tested positive for cocaine.

911101:	NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substance on 911001, to wit: wrongfully use cocaine.
	Award: Forfeiture of $376 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

911114:	Commanding Officer, Transient Personnel Unit, Norfolk, VA notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, pattern of misconduct and drug abuse as evidenced by service record entries.

911219:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

920226:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense and misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

920311:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to a pattern of misconduct and misconduct due to drug abuse as evidenced by service record entries.  Commanding Officer’s comments (verbatim):  Concur with the findings and recommendation of the Board.

920413:	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 920429 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).

Issue 1.  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offenses for which he was discharged.  Relief not warranted.

The Applicant 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.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C, effective 15 Aug 91 until 
04 Mar 93), 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 “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/A9301/A9221