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Docket No. ND02-01043

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

 ex-AR, USN
Docket No. ND02-01043

Applicant’s Request

The application for discharge review, received 020718, requested that the characterization of service on the discharge be changed to honorable.  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 by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030414.  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, as submitted

Dear Chairperson:

After a review of the Former Service Member (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by the Applicant, in his request that he be given the opportunity to change his Under Other Than Honorable Discharge to an General (Under Honorable Conditions) Discharge.

The (FSM) entered the United States Naval Services September 03, 1998 and separated on July 01, 1999 during this period the FSM committed several UCMJ infractions to include messing ship movement, assault and battery and (Misconduct Due to possession of a controlled substance Drug Abuse) which was the subsequent reason he was separated from service with the character of service Under Other Than Honorable Conditions.  The (FSM) now is requesting to contribute his actions for these violations, due to what he feels was a psychosis disorder that lead him to act out in what he now views as extremely harmful mental condition and shows he exhibited negative behaviors that subsequently lead to his dismissal from the U S Naval Services.

The (FSM) now respectfully requests an equitable standard be applied as well as equity in treatment in seeking the boards' approval to afford him the opportunity to receive a General (Under Honorable Conditions) Discharge as a member of the United Naval Services for what he considers were issues relating to his mental disorder in service.

The (FSM) sincerely hopes that by respectfully requesting and being granted an Honorable Discharge from the U S Naval Services, he feels this is a matter of Supreme Honor and Respect he will cherish throughout his lifetime.

The (FSM) also states he had always tried to achieve Honor and Respect during his entire enlistment of military duty in the Naval Services, he just failed on these instances on this enlistment and is now is paying for it for the rest of his life.  'Me DAV respectfully request that the (FSM) be given complete and duly consideration by the board.

We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now wishes to correct the General character of his discharge from Misconduct (Under Other Than Honorable) Discharge to a General Discharge (Under Honorable Conditions).

We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.

Respectfully,

Documentation

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

Reference Letter from B_ M_, Chief of Montrose Police Department
Aftercare Plan from Arkansas Department of Human Services (3 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960316 - 960716	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  960717			Date of Discharge:  990907

Length of Service (years, months, days):

	Active:    03  00  11
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4

Education Level:  12				AFQT:  43

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  1.00 (1)		OTA:  2.67

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, AFEM (2), AFSM, NATO

Days of Unauthorized Absence:  16

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:

970709:	Counseling: Advised of deficiency (Responsibilities), notified of corrective actions and assistance available.

970909:	NJP for violation of UCMJ, Article 128 (2 specs): (1) Assault on Airman by striking him with his fist on 970804, (2) Assault by striking her with his fist on 970804.
	Award:  Correctional Custody for 30 days, forfeiture of $505.00 per month for 2 months, reduction to AA.  No indication of appeal in the record.

970714:	Counseling: Advised of deficiency (Responsibilities), notified of corrective actions and assistance available.

980716:	Applicant declared a deserter on 980714 having been an unauthorized absentee since 1500, 980705 from STRKFITRON THREE SEVEN.

980903:	NJP for violation of UCMJ, Article 86: Did on or about 1500, 980705, without authority absent himself from his place of duty at which he was required to be, to wit: Hangar 815 Mod C, located at NAS Cecil Field, Florida, and did remain so absent until 0845, 980721 (15 days), violation of UCMJ, Article 87: Did at Strike-Fighter Squadron THREE SEVEN, NAS, Cecil Field, on or about 980715, through design miss the movement of USS ENTERPRISE (CVN-65) with which he was required in the course of duty to move.
	Award: Forfeiture of $560.95 pay per month for 2 months, restriction and extra duty for 45 days, reduction to AA.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

980903:	Retention Warning: Advised of deficiency (Unauthorized absence and missing ship's movement through neglect.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

990728:	Summary Court-Martial:
	Violation of the UCMJ, Article 112A: Wrongful use, possession, of controlled substances between 990607 through 990617, to wit: marijuana.
	Sentence: Confinement for 30 days, forfeiture of $639.00 pay per month for 1 month, reduced to AR.
	CA action 990728:  Sentence approved and ordered executed.

990728:	Applicant to confinement.

990821:	Applicant from confinement and returned to full duty.

990823:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to drug abuse.

990823:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

990823:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct; misconduct due to drug abuse, and misconduct due to commission of a serious offense.

990826:	COMNAVAIRLANT NORFOLK VA directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

990831:	Applicant to unauthorized absence 0700, 990831.

990901:	Applicant from unauthorized absence 0700, 990901 (1 day/surrendered).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 990907 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:  A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service was marred by award of two nonjudicial punishments (NJP) and a summary court-martial conviction for illegal drug use.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflect his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for a honorable characterization of service.  An upgrade to general (under honorable) conditions would be inappropriate.  Relief denied.  

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, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the Applicant is living a drug free life style, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. 

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 additional documentation to support any claims of post-service accomplishments at that time.  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), 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 "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:  A6600/A9217/A9317/A9323/A9223/A9225/A9221