Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. ND06-00124

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

FOR OFFICIAL USE ONLY

 ex-SR, USN
Docket No. ND06-00124

Applicant’s Request

The application for discharge review was received on 20051025.  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. 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 at the Washington Navy Yard, Washington, D.C.  Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060825.  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 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 feel my discharge status to be inequitable because I was offered this discharge and chose to take it based on advise from a career counselor on board at the time.  I had just returned from completing a sentence of three days in the brig at 32^nd Street naval Station on bread and water.  Upon my return I met with the C.O. and was asked if I would like to leave the Navy.  At the time the counselor told me that in 6 months the status would automatically change to honorable.  Upon receiving a copy of my DD 214 on February 18, 2005 I found that this was not correct.  However, I had gone into the fleet non-designated, and was wanting to strike for a Photographers mate.  I kept getting the run around on that from the counselor and grew more and more aggravated.  I saw the opportunity to get out and upon advise from the counselor on board I took it.  I have since become a contributing member to my local community, I have appeared as a guest speaker for the Government of Louisiana’ Economic Development Conference, have held seats on boards for the local community.  My wife is a physician and I am now considering politics.  Please consider my request.  If deemed necessary I can appear in person.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19890829 - 19891022	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19891023		Date of Discharge:  19901102

Length of Service (years, months, days):

	Active:    01  00  10  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  10 days
	Confinement:		  3 days

Age at Entry:  19 

Years Contracted:  4 (24 month extension)

Education Level:  9 (GED)				AFQT:  68

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.0 (2) 		Behavior:  2.0 (2) 		OTA:  2.60 

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

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

UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct - Pattern of misconduct, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

890828:	Applicant briefed on Navy's policy of drug and alcohol abuse.

900522:	Applicant to unauthorized absence at 0700 on 900522.

900602:	Applicant from unauthorized absence at 1850 on 900602 (10 days/surrendered).

900608:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award:  Forfeiture of $405.00 pay per month for 1 month, restriction and extra duty for 45 days.  No indication of appeal in the record.

900906:	NJP for violation of UCMJ, Article 128: Assault with a dangerous weapon.
Award:  Restriction and extra duty for 45 days, reduction to E-1 (suspended for 3 months).  No indication of appeal in the record.

900906:	Retention Warning:  Advised of deficiency (Misconduct due to assault.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

901004:	Reduction in pay grade awarded at NJP on 900906 vacated due to continued misconduct.

901004:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
Award:  Restriction and extra duty for 30 days.  No indication of appeal in the record.

901018:	NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substance.
Award:  3 days bread and water at Naval Station San Diego, CA Brig.  No indication of appeal in the record.

901024:	Drug and Alcohol Abuse Report: Indicates amphetamine abuse as a result of a probable cause urinalysis, dependency not determined, recommended for separation not via VA hospital. 

901024:	Command DAPA, USS  KINCAID DD-965 to Medical Officer.  DAPA requests medical evaluation.  DAPA comments: “svm (Applicant) willfully admitted to using drugs more than once.  Fortunately this time he was caught.  At this time, DAPA is unable to determine his dependency.”

901025:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct as evidenced by all punishments under the UCMJ in the Applicant’s current enlistment, misconduct due to drug abuse as evidenced by all drug incidents in the Applicant’s current enlistment and misconduct due to commission a serious offense as evidenced by all punishments under the UCMJ which can result in a punitive discharge during the Applicant’s current enlistment.

901025:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

901025:	Medical evaluation by medical officer found drug abuse, Applicant not drug dependent, poor judgement, not recommended for further service, fit for separation.

901027:	Commanding Officer, USS KINKAID recommended Applicant discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct, misconduct due to drug abuse and misconduct due to commission a serious offense.  Commanding Officer’s comments:  “Counseling requirements met IAW MILPERSMAN 3630600.  Most recent PG 13 Administrative Warning signed by member 6SEP90.  SR T_ (Applicant) performance on board had been totally unsatisfactory.  The documented misconduct in his service record is deplorable, and no lack of counseling or attempts to retain SNM in the naval service can be blamed.  He has become an administrative burden to this command.  He has demonstrated absolutely no desire to continue naval service and his recent positive urinalysis strengthened my recommendation for immediate separation with a characterization of discharge as other than honorable.”

901030:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct (pattern).

901110:	Commanding Officer, USS KINKAID (DD 965) forwarded the administrative discharge package to CNMPC.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19901102 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of uncharacterized.  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).  

In the Applicant’s case, he requested that the character of discharge be upgraded to honorable because his discharge was inequitable.  He states that he was advised that the character of discharge would automatically be upgraded to honorable in six months.  There is no law or regulation that authorizes a discharge to be automatically upgraded after six months.  A former service member has 15 years, from the date of discharge, to petition the Board for consideration of an upgrade.  The Board does not automatically upgrade a discharge after six months.  Relief denied.

As to the character of his discharge, 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 a retention warning and four nonjudicial punishment proceedings for violations of Articles 86 (unauthorized absence), 112a (drug abuse), and 128 (assault with a deadly weapon) of the UCMJ.  Violations of Articles 112a and 128 are considered serious offenses for which a punitive discharge is authorized under 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.

The Applicant also mentions post-service conduct as a basis for upgrade of his discharge.  The following is provided for the edification of the Applicant.  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.  As of this time, the Applicant has not provided any post-service documentation for the Board to consider.  Relief denied.

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Articles 112a (use of a controlled substance) and 128 (assault with a dangerous weapon.

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