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Docket No. ND03-00861

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

 ex-AKAA, USN
Docket No. ND03-00861

Applicant’s Request

The application for discharge review was received on 20030424.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20040312.  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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

Applicant marked the box” I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION.” None were found.

Documentation

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

Letter from C___ M___, M.D. dated October 9, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	870129 - 870223	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  870224		Date of Discharge:  910219

Length of Service (years, months, days):

	Active:    03  09  13
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  54

Highest Rate:  AKAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.46 (3)	Behavior:  3.26 (3)		OTA:  3.46

Military Decorations:  None

Unit/Campaign/Service Awards:  OSR(2)

Days of Unauthorized Absence:  29

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

880909:	NJP for violation of UCMJ, Article 86: UA from on or about 0730, 880720, to on or about 1450, 880818(29 days/S).
	Award:  Forfeiture of $376.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

880912:	Retention Warning:  Advised of deficiency (An unauthorized absence for an excessive period of time, i.e. 29 days.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
890616:	NJP for violation of UCMJ, Article 112a: Wrongful use of a schedule I controlled substance on or between 890318 to 890418.
	Award:  Forfeiture of $349.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

890619:	Retention Warning:  Advised of deficiency (On or between 890318 and 890418 you wrongfully used marijuana, a schedule I controlled substance.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
890906:	Applicant advised that he has been identified through urinalysis testing, as evidenced by NAVDRUGLAB NORFOLK, VA message DTG 110854Z May 89, to be a drug abuser, placed on a drug urinalysis program. 

900516:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 89: Disrespect to superior Commissioned Officer on 900303.  Charge II: violation of the UCMJ, Article 134: Drunk and disorderly conduct on 900303. 
	Findings:  to Charge I and II, and specifications thereunder, guilty.
	Sentence:  Confinement for 45 days, forfeiture of $250.00 pay per month for 2 months.
	CA 900810:  Sentence approved and ordered executed.

901203:	NJP for violation of UCMJ, Article 134: Drunk and disorderly on 901107.
	Award:  Restriction and extra duty for 45 days.  No indication of appeal in the record.

901211:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse as evidenced by all punishments you received under the UCMJ during your current enlistment. .
910109:	Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

910111:	DAAR indicates alcohol abuse, found dependent by medical officer, is amenable and eligible, recommended for Level III.

910115:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and drug abuse.

910128:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910219 under other than honorable conditions for misconduct due to commission of a serious offense (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).

While the Applicant introduced no decisional issues for consideration by the Board, the Applicant’s service record was marred by award of three non-judicial punishments (NJP’s) and a special court martial.  Separation under these conditions generally results in characterization of service under other than honorable conditions.   Relief denied.

The following is provided for the edification of the Applicant.  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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  

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 or any other evidence pertaining to his discharge 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 – COMMISSION OF A SERIOUS OFFENSE.

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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