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Docket No. ND04-01404

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

ex-AMHAR, USN
Docket No. ND04-01404

Applicant’s Request

The application for discharge review was received on 20040902.  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.  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 acknowledgement letter was returned as undeliverable.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041229.  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:

 “ Because I was not military material due to my age & immatatury however I did a good job at my station”.

Documentation

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

None submitted

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	870601 - 870719	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  870720		Date of Discharge:  890925

Length of Service (years, months, days):

	Active:    02  00  07
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  11			AFQT:  57

Highest Rate:  AMHAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (2)	Behavior:  1.09 (2)		OTA:  2.10

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  55

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:

880114:	Retention Warning from [NATTC, NAS Memphis, Millington, TN]:  Advised of deficiency (Violation of Article 86: SNM was UA from 0630 until 0705 on 880105.  Specification 2: SNM was UA from 0630 until 0700 on 880106.  Specification 3: SNM was UA from 1230 until 1315 on 880106.  Violation of Article 92: SNM violated a lawful written order by wrongfully wearing the dungaree uniform while sleeping in rack on or about 880106), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

880114:	NJP for violation of UCMJ, Article 86: (4 Specifications), UA from appointed place of duty, 5, 6, 880112, violation of UCMJ, Article 92: Failure to obey a lawful order/regulation on 880106.
	Award: Forfeiture of $156.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 14 days.  No indication of appeal in the record.

890321:	Applicant to UA at 0700, 890321.

890322:	Applicant from UA at 0700, 890322.

890325:	Applicant to UA at 1530, 890235.

890421:	Applicant from UA at 0149, 890421.

890425:	Applicant to UA at 1200, 890425.

890523:	Applicant from UA at 1603, 890523.

890607:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (3 Specifications), 
	Specification 1: UA from STRKFITRON 137 from 890321 to 890322; from 890325 to 890421; and from 890425 to 890523. Charge II: violation of the UCMJ, Article 134: Break Restriction, 890425.
	Finding:  to Charge I and specification 1, 2 and 3 thereunder, guilty.  To Charge II and specification thereunder, guilty.
	Sentence:  45 days hard labor without confinement, 45 days restriction, forfeiture of $466.00 pay per month for 1 month, reduced to E-1.
	CA action 890607:  Sentence approved and ordered executed.  Restriction and hard labor without confinement will be to the limits of the USS CORAL SEA (CV-43).

890612:	Retention Warning:  Advised of deficiency [Violation of Article 86: Unauthorized Absence and Violation of Article 134: Restriction, breaking], notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

890707:	NJP for violation of UCMJ, Article 112a: Wrongfully use a Scheduled I controlled substance (Marijuana).
	Award: Restriction to USS CORAL SEA (CV-43).  No indication of appeal in the record.

890709:	Commanding Officer notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to drug abuse, and misconduct due to commissioned of serious offense.

890709:	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.

890710:	DAAR indicates marijuana abuse as a result of a service directed urinalysis, found not dependent, not eligible for treatment, recommended for separation not via VA hospital.  Member [Applicant] has no potential for further naval service.

890724:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct, misconduct due to drug abuse, and misconduct due to commission of a serious offense.  Reason for separation processing: misconduct due to pattern of misconduct as evidenced by three or more punishments under the UCMJ within the current enlistment, the latest offense to have occurred while assigned to the parent command, misconduct due to drug abuse as evidenced by urinalysis screening conducted after a period of UA which resulted in a positive testing for THC, and misconduct due to commission of a serious offense.

890830:	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 19890925 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).

The Applicant contends that he was “not military material due to his age and immaturity” but that he “did a good job at my station”.   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 2 nonjudicial punishment proceedings for violations of Articles 86 (4 specs), 92 and 112a of the UCMJ.  Also, the Applicant was found guilty by a summary court-martial of violating Articles 86 (3 specs UA for a total of 55 days) and 134 of the UCMJ.   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 and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  

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.