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Docket No. ND04-01326

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

ex-MMFA, USN
Docket No. ND04-01326

Applicant’s Request

The application for discharge review was received on 20040824.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area.  The Applicant did not respond.

Decision

A documentary review was conducted in Washington, D.C. on 20050608.  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

No issues were submitted by the Applicant.

Documentation

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

None were submitted.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	880527 - 881205	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  881206		Date of Discharge:  910828

Length of Service (years, months, days):

	Active:    02  08  23
	Inactive:  None

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

Education Level:  12			AFQT:  85

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (3)		Behavior:  3.67 (3)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NDSM, SASM (2)

Days of Unauthorized Absence:  None

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:

901026:	NJP for violation of UCMJ, Article 86 (3 specs):  (1) Fail to go at 1600, 901006, to wit: muster with duty “M” Division to perform EMI, (2) Unauthorized absence from 0715-1200, 901001, (3) Unauthorized absence from 0745-0845, 901007.
	Award:  Forfeiture of $200 per month for 1 month, restriction for 30 days, reduction to E-3.  Restriction and reduction suspended for 6 months.  No indication of appeal in the record.

901026:	Retention Warning from USS SACRAMENTO (AOE-1):  Advised of deficiency (Commanding Officer’s nonjudicial punishment of 901026.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

901206:	NJP for violation of UCMJ, Article 91 (2 specs):  (1) Disrespectful in language toward MM1 G_ on 901123, (2) Willfully disobey a lawful order from MM1 G_ on 901123.
	Award:  Forfeiture of $200 per month for 2 months, restriction and extra duty for 30 days.  15 days of restriction suspended for 3 months.  No indication of appeal in the record.

901209:	Retention Warning from USS SACRAMENTO (AOE-1):  Advised of deficiency (Two Commanding Officer’s nonjudicial punishments within the current enlistment.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910617:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from 0715-0815, 910602.
	Award:  Forfeiture of $150 per month for 1 month, reduction to E-3.  Reduction suspended for 3 months.  No indication of appeal in the record.

910619:	NAVDRUGLAB, Oakland, CA, reported Applicant’s urine sample, received 910613, tested positive for THC.

910628:	Vacate suspended reduction to E-3 awarded at CO’s NJP dated 910617 due to subsequent violations of the UCMJ.

910628:	NJP for violation of UCMJ, Article 112a:  Wrongfully use marijuana on 910602.
	Award:  Restriction and extra duties for 45 days, forfeiture of $422 per month for 2 months, reduction to E-2.  No indication of appeal in the record.

910701:	Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, ashore off duty.  Unit sweep urinalysis on 910602.  DAPA and physician found Applicant not dependent and recommended separation.  Commanding Officer recommends separation.  Comments: Intelligent, resourceful individual who possesses above average potential.  Has trouble conforming to established standards.  Not recommended for advancement or retention in the U.S. Navy.

910701:	USS SACRAMENTO (AOE-1) notified Applicant of intended recommendation for discharge by reason of misconduct due to drug abuse, misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct as evidenced by a positive urinalysis and four Commanding Officer’s nonjudicial punishments within current enlistment.  The Applicant was notified that the least favorable characterization of service possible is under other than honorable conditions.

910701:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.  The Applicant did not object to the separation.

910719:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

910821:	BUPERS 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 19910828 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 impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by unauthorized absences, disrespect to superiors, orders violations, and wrongful drug use.  This misconduct resulted in four separate nonjudicial punishment proceedings for violations of UCMJ Articles 86, 91, 92, and 112a.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is 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.  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 5420.174D 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

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.