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

ex-OS3, USN
Docket No. ND04-00966

Applicant’s Request

The application for discharge review was received on 20040525.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record  review.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050201.  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, authority: NAVMILPERSMAN, Article 1910-144 (formerly 3630610).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “It is unclear as to why I got this kind of discharged.”

The American Legion did not provide any issues.

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)	010530 - 010925	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  010926		Date of Discharge:  030505

Length of Service (years, months, days):

	Active:    01  07  10
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  47

Highest Rate:  OS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)		Behavior:  2.00 (1)		OTA:  2.83

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  30

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-144 (formerly 3630610).

Chronological Listing of Significant Service Events:

030218:	Applicant to unauthorized absence 0600, 030218.

030221:	Civil Conviction:  Circuit Court of Leon County, FL for violation of possession of marijuana on 030220.
Sentence: Fine $295.00, jail for 4 days, with 4 days credit.

030319:	Applicant from unauthorized absence 0600, 030319 (30 days/returned).

030328:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 030218 to 030319.
	Award: Forfeiture of $708 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  Reduction suspended for 6 months.  No indication of appeal in the record.

030403:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction and misconduct due to commission of a serious offense.

030403:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights.

030417:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction and misconduct due to commission of a serious offense.  Commanding Officer’s comments (verbatim):  At a recent nonjudicial punishment proceeding, Operations Specialist Third Class S_ (Applicant) pled guilty to and was found guilty of an unauthorized absence of 30 days, a serious offense under the MILPERSMAN.  Additionally, he pled no contest and was found guilty in civilian court of possession of marijuana, another serious offense.  His behavior demonstrates a complete lack of respect for good order and discipline and a disregard for the welfare of his shipmates.  Drug abuse is unacceptable and creates an extremely hazardous working environment for the entire crew aboard USS JOHN F. KENNEDY.  Details of his unacceptable behavior are contained within enc1osures (2) through (5). 0S3 S_ (Applicant) does not contest this separation.  I strongly recommend that he be separated from the Naval Service under Other Than Honorable conditions for misconduct due to civilian conviction and Commission of Serious offenses.

030422:	Commander, Carrier Group SIX directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a civil conviction.

030424:	Applicant waived being seen by Substance Abuse Rehabilitation Program counselor and ship’s psychologist.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030505 under other than honorable conditions for misconduct due to a civil conviction (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 nonjudicial punishment (NJP) proceeding for violation of Article 86 (Unauthorized absence for 30 days) of the UCMJ, and he was convicted in a civil court for marijuana possession.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an upgrade to his characterization of service.  Relief denied.

The Applicant stated that he was unsure of the reason why he received an under other
than honorable discharge.  The Applicant was notified of the intended recommendation
for discharge under other than honorable conditions by reason of misconduct due to a
civil conviction and misconduct due to commission of a serious offense.  The Applicant
was advised of his rights and elected not to consult with counsel certified under UCMJ, 
Article 27(b), and elected to waive all rights.

Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Relief not warranted.

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.  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), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-144 (previously 3630610), Separation by Reason of Misconduct - Civilian Conviction. 

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023