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Docket No. ND03-00341

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

 ex-SR, USN
Docket No. ND03-00341

Applicant’s Request

The application for discharge review was received on 20021231.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant did not list any representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031221.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 stated

Applicant’s issues, as stated on the application:

1.  “Dear Sir or Mam, I realize that during my time in the Navy I’ve made some terrible mistakes.  I would like to focus my life on returning to the Military and serving my country to the best of my ability.  I believe I owe it to myself to rededicate my life to the military and get back my self respect and live a full life, knowing I can accomplish the goal of being a 4.0 military man.

Thank you,

M_ A_
(social security number deleted)”

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):

	Inactive: USNR (DEP)	871217 - 880404	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  880405		Date of Discharge:  891108

Length of Service (years, months, days):

	Active:    01  07  04
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  26

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (2)	Behavior:  1.80 (3)		OTA:  2.90

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  4

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:

880410:	Applicant briefed on Navy's policy of drug and alcohol abuse.

890112:	NJP for violation of UCMJ, Article 86 (3 specs): 1 Absent from unit on 1145, 881228 to 0900, 881230 (1 day/surrendered), 2 Absent from unit on 0500-1200, 881231, 3 Absent from unit 0500, 890104 to 0500, 890106, violation of UCMJ, Article 92: Failure to obey a petty officer, to wit: to return rental car on 881216 to Payless Car Rental Agency, violation of UCMJ, Article 134: Failure to pay debt of $1,795.82 to Payless Car Rental.
	Award: Forfeiture of $349 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

890131:	Retention Warning from USS CARON (DD 970):  Advised of deficiency (Complete irresponsibility for your own actions.  Blatant dishonesty toward superiors.  Lack of regard for military protocol.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

890210:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, processed on 890127, tested positive for THC.

890227:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 890127, to wit: marijuana.
	Award: Restriction and extra duty for 45 days.  Appealed 890228.  Appeal denied 890403.

890303:	Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, ashore off duty.  Consentual urinalysis 890223.  DAPA found Applicant not dependent and recommended separation via VA hospital.  Commanding Officer recommended separate via VA hospital.  Comments: SNM has a history of financial problems, problems with authority, and poor performance.  Since the SNM has been onboard the CARON, he has been counseled, and has violated 4 UCMJ Articles.  All that has transpired with the SNM in a period of 5 months.  SR A_ (Applicant) has no potential for future naval service.  SNM is also not eligible nor amenable for any type of treatment.

890308:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

890727:	NJP for violation of UCMJ, Article 86: Unauthorized absence on 890705 to 890708 (3 days).
	Award: Restriction and extra duty for 45 days, reduction to E-X.  No indication of appeal in the record.

890731:	USS CARON (DD 970) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse.

890801:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

890825:	An Administrative Discharge Board, based upon preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct and misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

890921:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse.  Commanding Officer’s comments (verbatim):  Comments and recommendations of commanding: This particular case requires a detailed narrative chronology of events.   Every effort has been made guidance and access to personal support avenues.    He is, even with very close supervision, unable to display a logical thought responsibly as (described by the following:

SR A_ (Applicant) announced, while attending Indoctrination Division that he was thinking of getting married during the Christmas leave period.  The command was concerned about the arrival of a new young wife who was unfamiliar with the ways of the Navy.  The Executive Officer personally briefed SR A_ (Applicant) about the use of his personal chain of command, which senior personnel would be available for support, and the open door policy of the Executive Officer and Commanding Officer to discuss problems.  Shortly after Christmas, SR A_ (Applicant) had a number of unauthorized absences.  SR A_ (Applicant) never let anyone in his chain of command know what his personal problems were or that he had actually gotten married.  He also made no attempts to inform any of the numerous support personnel outside his immediate chain of command, i.e. Command Master Chief, Chief Hospital Corpsman, cha~_1lian, a4AA, or his chain of command Department Head, XO, or CO.  SR A_ (Applicant) was awarded NJP and even then he did not reveal that he had actually gotten married.  He had made no effort to tell anyone onboard, the ships office or disbursing.  The first indication that SR A_ (Applicant) had actually gotten married was when the command was notified of his problems with an auto-rental agency.  SR A_ (Applicant) had rented a car and owed over $1000.00 in rental fees.  When questioned about this SR A_ (Applicant) said he would return the car.  Then the ship was notified by the rental agency that Mrs A_ had delivered the car and was going to be incarcerated because the car was a month overdue, had been taken out of state, and required over $7000.00 of repairs due to extensive interior and exterior damage.  When confronted with this situation, SR A_ (Applicant) stated he had gotten married and he had sent his wife to the rental agency because he was afraid he would be in trouble.  He stated they would be less severe on a female.  On further inquiry the command found that Mrs A_ had been “put up” in various other crew members’ houses because the A_’s (Applicant's) had no place to live.  The Command aster Chief and the Executive Officer intervened and prevented Mrs A_ from being arrested.  They arranged Navy Housing for SR and Mrs A_ in less than 24 hours.  A satisfactory payment schedule was arranged with the car rental agency.  Once it became known he was married, a page 2 was drawn up, an ID Card was obtained and his pay adjusted.  Upon his return from unauthorized absence SR A_ (Applicant) consented to provide a urine sample which tested positive for THC and resulted in a second NJP.  He stated during NJP that he had just smoked marijuana while at home during Christmas, since he wasn’t on board he didn’t think it was all that bad.

He stated he was fully aware of the Navy’s zero drug policy.  After completion of his punishment every effort was made to assist SR A_ (Applicant) and his wife who phoned the Command Master Chief daily.  She was shown the Navy facilities, Commissary, Medical Clinic, Family Services, and explained the function of CHAMPUS.   Not long after this SR A_ (Applicant) lapsed in his payments to the rental agency.  This occured numerous times over the next few months at great expense in time for the command, requiring visits to the agency, personal escorts, letters, and phone conversations.  As a result of SR A_ (Applicant's) actions New Orleans auto rental Agencies established a policy not to rent to Navy Personnel below the paygrade of E-6.  The credibility of the CARON and the U.S. Navy was severely questioned.  At this point the Housing Department at the Naval Support Activity New Orleans started phoning the command about loud parties SR A_ (Applicant) was holding in Navy Housing and the use of profane language around the local children.  SR A_ (Applicant) was notified of these complaints.  He claimed these incidents did not occur; however, a number of other crew members stated that they participated in parties and even lived in Navy Housing with him.  SR A_ (Applicant) was advised he was being processed for an administrative separation.  His discharge procedures were then delayed because his defense counsel was transferred and SR A_ (Applicant) requested a legal counsel and another defense counsel would not be made available for several months.  Meanwhile, Navy Housing phoned notifying the command that SR A_ (Applicant) was reported to be living in Navy Housing with other crew members and that his wife had returned home.  Regulations therefore required SR A_ (Applicant) to vacate Navy Housing.  Questioned about this he stated his wife was returning.  Again, there was no attempt by SR A_ (Applicant) to use any supervisory personnel to discuss his personal problems.  SR A_’s (Applicant's) wife phoned the command stating she was returning to pick up her possessions only and that she was proceeding with a divorce.  Over the 4th of July weekend SR A_ (Applicant) returned home to St. Louis.  On 5 July SR A_ (Applicant) was the only crew member who did not return from liberty.  He claimed he thought liberty ended at noon, and that his flight as cancelled due to mechanical problems so he returned home.  SR A_ (Applicant) stated that the next day his sister took him to the airport and was in an accident on her return so he returned home again.  He called the ship a couple of times to report, but he only spoke to fellow SN so the information was delayed in reaching his department head and the CDO.  SR A_ (Applicant) stated his mother worked for Red Cross, so he was directed to have an AMCROSS message sent to the ship.  No message was ever received and SR A_ (Applicant) returned on 10 July.  After his return every effort was made to obtain a Red Cross verification to substantiate SR A_’s (Applicant's) stories.  The Command was unable to verify whether his sister was ever in an accident.  SR A_ (Applicant) was awarded NJP.  The admin board was able to proceed after a new defense attorney arrived and a Lieutenant commander Board president became available.  The command recently assigned SR A_ (Applicant) in moving from Navy Housing after SR A_ (Applicant) made no effort to meet his vacate date or to leave Navy housing as he received it.

Seaman Recruit A_ (Applicant) continues to be an administrative burden on this command.  Seaman Recruit A_ (Applicant) is either incapable of adhering to the rules and regulations of the ship and Navy, or he is simply unwilling to conduct himself iii a manner conducive to good order and discipline.  His conduct falls within the parameters of reference (a) and (b) discharge is warranted.  I recommend that he be separated from the naval service with an Other Than Honorable Discharge.  Owing to his discipline problems, I would like to have him separated as quickly as possible.

891027:	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 19891108 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 Board recognizes that the Applicant is remorseful for the poor judgment he exercised during his military career.  However, the Board will not recharacterize a former member’s discharge because he realizes he made mistakes while serving his country.  The Board will only change a discharge if it’s issuance is determined to have been inequitable or improper.  Relief denied.

In regards to the Applicant’s desire to return to the military, the NDRB has no input into reenlistment eligibility.  The Applicant will have to contact a recruiting office to determine his eligibility for reenlistment.

The following is provided for the edification of the Applicant.  There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  However, the NDRB is authorized to consider post-service factors in the recharacteriza-tion of a discharge.  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.  Verifiable proof of 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 credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant has not provided any documentation for the Board to consider an upgrade.

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 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.  Naval Military Personnel Manual, (NAVPERS 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), 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.
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