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Docket No. ND05-01293

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

FOR OFFICIAL USE ONLY

ex-SA, USN
Docket No. ND05-01293

Applicant’s Request

The application for discharge review was received on 20050727.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060406.  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 and reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I made a mistake early in my life. I’ve changed for the better and would like to go on with my life.  I have received an associates degree in computer network and I’m pursuing my bachelor’s.”

Documentation

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

Letter of Appreciation dtd January 23, 2001
Certificate of Completion (Advanced Electronics Technical Core School) dtd January 23, 2001
Honor Certificate from ITT Technical Institute, Spring 2002
Honor Certificate from ITT Technical Institute, Winter 2002
Honor Certificate from ITT Technical Institute, Fall 2002
Honor Certificate from ITT Technical Institute, Summer 2002
Director’s Award Listing, dated March 2004
Director’s Award from ITT Technical Institute, Spring 2004      
Associate of Applied Science Degree from ITT Technical Institute, dtd March 1, 2005
Applicant’s Resume

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19971212 - 20000608		HON
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000609		Date of Discharge:  20010525

Length of Service (years, months, days):

	Active:    00  11  16  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	61 days
	Confinement:			None

Age at Entry:  20 

Years Contracted:  4 (24 month extension)

Education Level:  14				AFQT:  84

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB*			Behavior:  2.00 (1) 		OTA:  2.00

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  None

*Not observed

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

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

Chronological Listing of Significant Service Events: 

010207:	Retention Warning:  Advised of deficiency (Violation UCMJ Article(s) 121, Larceny.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010212:	NJP for violation of UCMJ, Article 121: Larceny, steal a jacket and a pair of boots, property of SN G_.
	Award:  Restriction and extra duty for 14 days.  No indication of appeal in the record.

010430:	NAVDRUGLAB, Great Lakes, IL reported Applicant’s urine sample, received 010420, tested positive for cocaine and THC.

010503:	Applicant declined all medical screening for alcohol and/or drug dependency by a medical officer.
 
010504:	NJP for violation of UCMJ, Article 86 (4 specs):  Unauthorized absence.
	Specification 1: In that Seaman K_ J. J_, U.S. Navy, Service School Command, Great Lakes, Illinois, on active duty, did on or about 0600, 22 February 2001, without authority, absent himself from his organization at which he was required to be, to wit: Service School Command, located at Naval Training Center, Great Lakes, Illinois, and did remain so absent until on or about 0106, 27 February 2001 (5 days).
	Specification 2: In that Seaman K_ J. J_, U.S. Navy, Service School Command, Great Lakes, Illinois, on active duty, did on or about 0600, 28 February 2001, without authority, absent himself from his organization at which he was required to be, to wit: Service School Command, located at Naval Training Center, Great Lakes, Illinois, and did remain so absent until on or about 1030, 07 March 2001 (7 days).
	Specification 3: In that Seaman K_ J. J_, U.S. Navy, Service School Command, Great Lakes, Illinois, on active duty, did on or about 0600, 12 March 2001, without authority, absent himself from his organization at which he was required to be, to wit: Service School Command, located at Naval Training Center, Great Lakes, Illinois, and did remain so absent until on or about 1822, 11 April 2001 (30 days).
Specification 4: In that Seaman K_ J. J_, U.S. Navy, Service School Command, Great Lakes, Illinois, on active duty, did on or about 0700, 13 April 2001, without authority, absent himself from his organization at which he was required to be, to wit: Service School Command, located at Naval Training Center, Great Lakes, Illinois, and did remain so absent until on or about 1200, 02 May 2001 (19 days).
	Violation of UCMJ, Article 112a (5 specs): Wrongful use of a controlled substance.
	Specification 1: In that Seaman K_ J. J_, U.S. Navy, Service School Command, Great Lakes, Illinois, on active duty, did, in the Continental United States, between 23 February 2001, and 27 February 2001, wrongfully use cocaine.
 	Specification 2: In that Seaman K_ J. J_, U.S. Navy, Service School Command, Great Lakes, Illinois, on active duty, did, in the Continental United States, between 04 March 2001, and 08 March 2001, wrongfully use cocaine.
	Specification 3: In that Seaman K_ J. J_, U.S. Navy, Service School Command, Great Lakes, Illinois, on active duty, did, in the Continental United States, between 08 February 2001, and 08 March 2001, wrongfully use marijuana.
	Specification 4: In that Seaman K_ J. J_, U.S. Navy, Service School Command, Great Lakes, Illinois, on active duty, did, in the Continental United States, between 08 April 2001, and 12 April 2001, wrongfully use cocaine.
	Specification 5: In that Seaman K_ J. J_, U.S. Navy, Service School Command, Great Lakes, Illinois, on active duty, did, in the Continental United States, between 12 March 2001, and 12 April 2001, wrongfully use marijuana.
Award:  Forfeiture of $685.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

010504:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct drug abuse and misconduct pattern of misconduct.

010504:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

010515:	Commanding Officer, Service School Command, Great Lakes recommended discharge under other than honorable conditions by reason of misconduct pattern of misconduct and misconduct drug abuse.  Commanding Officer’s comments:  “Pursuant to reference (a), enclosures (1) through (6) are forwarded.  Based on a review of all documents applicable in this case.  I find no potential for further naval service.  I recommend member be separated with a discharge characterized as Other Than Honorable.”

010516:	Commander, Naval Training Center, Great Lakes 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 20010525 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of under other than honorable conditions.  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 (B and C).  

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 a member's conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  The Applicant was awarded nonjudicial punishment (NJP) on 20010212 for violating UCMJ Article 121, larceny for stealing a jacket and pair of boots from a shipmate.  Subsequent to this NJP, the Applicant was administratively warned by issuance of a NAVPERS 1070/613 Counseling/Retention warning that further misconduct could result in administrative separation.  On 20010504, Applicant was awarded a second NJP for five violations of UCMJ Article 112a, for wrongful use of a controlled substance, specifically, unlawful cocaine use on three occasions and wrongful marijuana use on two occasions, and four violations of UCMJ Article 86 for four separate periods of unauthorized absence totaling 61 days.  Under applicable regulations, the Applicant’s misconduct did in fact constitute a pattern of misconduct.  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.

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 could 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 naval records, ITT Technical Institute honor awards and Associate’s Degree, and his resume.  After careful consideration, the Board concluded the Applicant’s post-service achievements have 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 additional evidence related to this 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 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  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