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Docket No. ND05-00590

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

 ex-FA, USN
Docket No. ND05-00590

Applicant’s Request

The application for discharge review was received on 20050223.  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.

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/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. “ Statement by Veteran,

To Whom it May Concern: I J_ L. G_ (Applicant) recognize the seriousness of my misconduct, and I have led a productive life since my discharge, and that myself warrants clemency with upgrade of my other than honorable discharge based on my post-service citizenship.”

Documentation

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

Reference Letter from J_ D. D_, Mayor City of Breaux Bridge dated January 20, 2005
Police Record Check Letter dated January 20, 2005
Reference Letter from S_ M. D_, State Representative District 46, dated January 20, 2004 (received January 25, 2005)
Reference Letter from Attorney B_ R. S_ C_, dated January 25, 2005
Letter of Recommendation from Pastor J_ P. F_, S.S.J dated January 23, 2005
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000926 - 001011	COG
	Active:  USN 			None

Period of Service Under Review:

Date of Enlistment:  001012		Date of Discharge:  030131

Length of Service (years, months, days):

	Active:    02  04  20  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  37

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  14

*No marks found in service record

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:

020626:	NJP for violation of UCMJ, Article 86: (2 Specs):  Unauthorized absence.
Award:  Forfeiture of $651.00 pay per month for 2 month (1 month suspended for 6 months), restriction and extra duty for 45 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

020626:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Article 86, unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020809:	NJP for violation of UCMJ, Article 86:  Failure to go to appointed place of duty (3 restricted musters).
	Award:  Confinement for 3 days with Bread & Water.  No indication of appeal in the record.

021223:	NAVDRUGLAB, Great Lakes, IL, reported Applicant’s urine sample, received 021216, tested positive for THC.

030115:	NAVDRUGLAB, Great Lakes, IL, reported Applicant’s urine sample, received 030110, tested positive for THC.

030115:	NJP for violation of UCMJ, Article 112a:  Wrongful use of a controlled substance.
	Award:  Vacation of punishment awarded at NJP held on 020626, forfeiture of $651.00 pay per month for 1 month, reduction to E-2.  No indication of appeal in the record.

030116:	Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct, by reason of misconduct due to a commission of a serious offense, and by reason of misconduct due to drug abuse.  The Applicant was notified that if separation is approved, the least favorable characterization of service possible is under other than honorable conditions.   

030116:	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 

030117:	Applicant commenced a period of unauthorized absence.  [Extracted from CO’s letter].

030124:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense and misconduct due to drug abuse.

030129:	Chief of Naval Education and Training authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

030131:	DD Form 214:  Applicant discharged in absentia 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 20030131 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.  If a review of the available records reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  There is credible evidence in the record that the Applicant used illegal drugs.  The Applicant tested positive twice for THC on a urinalysis which resulted in the Applicant’s  award of nonjudicial punishment for a violation of the UMCJ Article 112a for wrongful drug use.  Additionally, the Applicant’s service was marred by two other nonjudicial punishments for multiple violations of UCMJ Article 86, failure to go to appointed place of duty and unauthorized absence.  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 Applicant was properly notified, processed and discharged under other than honorable conditions.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  Relief denied.

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 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.  The Board received and considered all of the Applicant’s submissions, including his letters of recommendation and his police records check.  As of this time, the Applicant’s post-service conduct has been insufficient to mitigate his misconduct while in the Naval service.  Relief denied.

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 any additional 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), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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.