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Docket No. ND03-00976

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

 ex-SR, USN
Docket No. ND03-00976

Applicant’s Request

The application for discharge review was received on 20030514.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  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 20040408.  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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  To whom it may concern, 

I will first start by explaining my discharge.  In October of 1999 I was granted emergency leave because my mother was terminally ill and having emergency surgery.  I was flown from Puerto Rico Home with 15 days to stay.  I took full advantage of my ship being underway and stayed a lot longer than I was supposed to.  While I was home I was hanging out with the wrong crowd.  I did smoke some marijuana when I got back to my ship they gave me a drug test and I failed I am not a habitual drug user.  I do understand ZERO TOLERANCE.  If I was able to reenter I would definitely straiten up and fly right.  I have grown and matured.  I would not take it as a joke.  It is very serious and important to me.  Please consider this application seriously and carefully.”

Documentation

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

Letter from Applicant’s Mother (2 pages)
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	980831 - 981006	COG
	Active:  USN 			None

Period of Service Under Review:

Date of Enlistment:  981007		Date of Discharge:  991222

Length of Service (years, months, days):

	Active:    01  01  18
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  75

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (2)	Behavior:  2.00 (2)		OTA:  2.00

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  29

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

981008:	You are being retained in the Naval Service, despite your fraudulent induction as evidenced by your failure to disclose required basic enlistment eligibility information.  This decision is based on the information you provided to the RECRUIT QUALITY ASSURANCE INTERVIEWER and if it is found that additional information has not been disclosed, you could be subject to other judicial or administrative proceedings.
SPEEDING, 5/96, GREENWOOD CO, SC, Paid $90.

990422:	Retention Warning:  Advised of deficiency (Article 92-violate a lawful general regulation-by wrongfully consuming an alcoholic beverage while under the age of 21; Article 134-Incapacitated for the proper performance of his duties), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

990422:	NJP for violation of UCMJ, Article 92: Underage drinking, violation of UCMJ, Article 134: Incapacitated for the proper performance of duties.
	Award: Forfeiture of $479.00 pay per month for 2 months, restriction and extra duty for 45 days (15 days suspended for 6 months), reduction to next inferior pay grade (suspended for 6 months).  No indication of appeal in the record.

991118:	NJP for violation of UCMJ, Article 86: UA from 0700, 991016 to 1230, 991114 (29days/S).
	Award: Restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

991204:	NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty, violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
Award: Restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

991206:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct drug abuse, misconduct commission of a serious offense, and misconduct pattern of misconduct.

991206:	Applicant advised of 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 

991206:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct commission of a serious offense, and misconduct drug abuse.

991215:	Commander, Cruiser-Destroyer Group 8 authorized 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 19991222 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:  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.  While he may feel that his youth and immaturity were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by award of nonjudicial punishment (NJP) on three separate occasions thus substantiating the misconduct. Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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 related 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 15560C), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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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