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

Docket No. ND06-00386

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

FOR OFFICIAL USE ONLY

 ex-OS3, USN
Docket No. ND06-00386

Applicant’s Request

The application for discharge review was received on 20060110.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant designated Civilian Counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061108.  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 in lieu of a trial by court-martial.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the attached documents:

Issues submitted by Applicant’s counsel/representative (Civilian Counsel):

“PETITION FOR REVIEW BEFORE
THE NAVY DISCHARGE REVIEW BOARD

The Petitioner, C_ L.  P_ (Applicant), by counsel, hereby submits this petition for review of discharge from the United States Navy, pursuant to Title 10, U.S.  Code, Section 1553, and hereby respectfully requests the following relief:

That the Petitioner be granted a General Discharge, under honorable conditions.

The following is presented for consideration.

PERSONAL HISTORY

The Petitioner is 26 years of age, born on May 4, 1978, in Tahoma Park, Maryland.  He is the son of T_ E. and L_ J. P_ of Glen Burnie, Maryland.  The Petitioner is their only child.  The Petitioner graduated from Glen Burnie Senior High School, Glen Burnie, Maryland.  He is single.

RELEVANT FACTS

The Petitioner, C_ L. P_ (Applicant), commenced active duty with the United States Navy on 24 September 1996, for a period of 4 years. His enlistment progressed normally and without incident.

See Attachment A (DD Form 4-Enlistment/Reenlistment Document)

On 2 August 1999, while assigned to the USS ELLIOT (DD 967), San Diego, California, the Petitioner provided a urine sample for a command urinalysis.

See Attachment B (DD Form 2624-Specimen Custody Document)

On 6 August 1999, the Petitioner began a period of unauthorized absence, missing the movement of the USS ELLIOT (DD 967), from San Diego, California.

See Attachment C (NAVPERS 1070/613-Administrative Remarks)

On 12 August 1999, the Navy Drug Screening Laboratory (NDSL), San Diego, California, reported the urine sample provided by the Petitioner was tested, and confirmed the presence of THC.

See Attachment D (NAVDRUGLAB SAN DIEGO CA MSG 121528Z AUG 99)

On 4 September 1999, the Petitioner surrendered on board USS ELLIOT (DD 967), having been absent for a period of 29 days.

See Attachment E (NAVPERS 1070/613-Administrative Remarks)

On 7 September 1999, the Petitioner was formally accused of violations of the Uniform Code of Military Justice (UCMJ), Article 86, unauthorized absence; Article 87, missing movement; and Article ll2a, wrongful use of THC (sic).

See Attachment F (NAVPERS 1626/7-Report & Disposition of Offenses - Front)

Appearing before Commanding Officer, USS ELLIOT (DD 967), for Nonjudicial Punishment, on 7 September 1999, the Petitioner was awarded 45 days restriction, 45 days extra duty, forfeiture of 1/2 month’s pay per month for 2 months, and reduction in rate to the next inferior pay grade.

See Attachment G (NAVPERS 1626/7-Report & Disposition of Offenses — Back)

The Commanding Officer, USS ELLIOT (DD 967), also initiated discharge proceedings against the Petitioner, which the Petitioner acknowledged on 7 September 1999.

See Attachment H (Administrative Separation Processing Notice)

On 13 September 1999, the Petitioner absented himself from the ship, at San Diego, California. 

See Attachment I (NAVPERS 1070/613-Administrative Remarks)

Believing the Petitioner’s intent was to remain away from the military permanently, shortly after the commencement of the absence, the Commanding Officer issued a Deserter/Absentee Wanted by the Armed Forces form on 15 September l999.

See Attachment J (DD Form 553_Deserter/Absentee Wanted by the Armed Forces)

On 31 October 1999, the Commanding Officer declared the Petitioner a deserter from the U.S. Navy.

See Attachment K (USS ELLIOT MSG 310430Z OCT 99)

On 24 October 2000, the Petitioner surrendered to military authorities at Transient personnel Unit, Naval Station Norfolk, Virginia, and on 17 November 2000, a charge of Article 86, UCMJ, unauthorized absence, from 13 September 1999 until 24 October 2000, was preferred.

See Attachment L (DD Form 458-Charge Sheet)

On 29 November 2000, submitted a request for administrative discharge in lieu of trial by court-martial.  The Separation Authority subsequently approved the request, and the Petitioner was separated from the U.S.  Navy on 8 December 2000, with a characterization of service as Under Other than Honorable Conditions.

See Attachment M (Petitioner’s request dtd 29 Nov 00)

See Attachment N (DD Form 214-Certificate of Discharge from Active Duty)

MILITARY HISTORY

A.  The petitioner was assigned to the following units while in the U.S.  Navy:

See Attachment 0 (NAVPERS 1070/605-History of Assignments)

960924 - 961130:	Navy Recruit Training Command 
Great Lakes, IL (Recruit Training)

961227 - 970314:  	OS Class “A” School (FCTCLANT) 
Dam Neck, VA (Student)

970324 - 001023:  	USS ELLIOT (DD 967) 
San Diego, CA (Duty)

001024 — 001208: 	Transient personnel Unit
Norfolk, VA (Transient)

B.  The Petitioner also received the following awards and decorations:

See Attachment P (Letters of Appreciation & Commendation, and Citations)

Food Service Attendant of the Month Award, for August, 1997.

Letter of Appreciation of 9/11/97, for outstanding performance during Seattle Seafair 1997;

Imperium Neptuni Regis (Shellback) Certificate of 10/27/98;

Letter of Commendation for the period 9/98 - 10/98, for outstanding performance of duties while serving as Quarterdeck Preservation Team Member on board USS ELLIOT (DD 967);

Western Pacific (WESTPAC) Deployment Certificate for the period 6/17/98 - 12/7/98; and

Letter of Commendation for the period 6/98 - 12/98, for outstanding performance as Combat Information Center Watch Stander on board USS ELLIOT (DD 967); and

Petty Officer Third Class Frocking letter of 1/21/99.

C.  The Petitioner’s evaluation reports indicate:

See Attachment Q (NAVPERS 1616/26-Evaluation Reports & Counseling Records)

1.  97MAR15 - 97JUL15.  Periodic/Regular Report.  CIC Watchstander.  3.0 Individual Trait Average - Promotable.

2.  97JUL16 - 98JAN15.  Periodic/Regular Report.  CIC Watchstander.  3.0 Individual Trait Average - Promotable.

3.  98JAN16 - 98JUL15.  Periodic/Regular Report.  CIC Watchstander.  3.0 Individual Trait Average - Must Promote.

4.  98JUL16 - 99JUN15.  Periodic/Regular Report.  CIC Watchstander.  4.0 Individual Trait Average - Promotable.  (Front Page of NAVPERS 1616/26 missing/not provided.)

ARGUMENT

This application is submitted for equity review/consideration, 32 CFR 70.9(c) (3).

From the time of his active duty enlistment on September 24, 1996, until his unauthorized absence on August 6, 1999, the Petitioner served honorably, a period of about 3 years.

As evidenced by his performance evaluations, the Petitioner established a reputation for quality work on all assigned tasks.  He was recognized by his superiors as an outstanding Sailor and provided excellent support as a member of the Navigation team.

The Petitioner was cited as an excellent Operations Specialist who demonstrated superb initiative and ability, and was an exceptional asset to the O1 Division and the Operations Department.  The Petitioner was highly recommended for advancement and assignments to only the most challenging at-sea Operation Specialist billets.

The Petitioner was on the path to success in the Navy, unfortunately, he made the unwise decision to use a controlled substance.  Realizing his mistake, a sense of doom and desperation prevailed leading to his unauthorized absence.  The Petitioner knew he had to resolve these disciplinary matters and be accountable for his actions.  He surrendered on board USS ELLIOT (DD 967) after being absent for 29 days.

The Petitioner appeared before his Commanding Officer on September 7, 1999.  Subsequent to receiving his punishment at the Nonjudicial Punishment proceedings, the Petitioner was advised that he was being considered for administrative separation.  At this point, he believed he could not salvage his enlistment, and that his naval service would soon end.

Believing he could end his military service on his own terms, the Petitioner absented himself on September 13, 1999.  He returned to his home in Maryland.  The Petitioner ultimately resolved to correct his past and surrendered at the Transient Personnel Unit, Norfolk, Virginia, on October 24, 2000.  The Petitioner found he was now facing serious consequences.  Court-martial proceedings were initiated by the command.  As preparations for trial began, the Petitioner submitted, through counsel, a request for an other than honorable discharge in lieu of trial by court-martial.  He was advised this was the best possible outcome he could hope for without suffering a federal conviction.  His request was approved, and he was discharged on December 8, 2000.

Approximately 5 years have passed since the Petitioner’s discharge.  His life and new profession encompass far more than the issues subject to his discharge — those issues do not totally reflect the outstanding Sailor he was before his disciplinary problems, and they do not reflect the person he has since become.  He has attempted to demonstrate that through the character letters, evaluations, and commendations submitted with this application.

The Petitioner fully acknowledges and takes responsibility for his actions.  He has taken positive steps in his personal and professional life, and desires to do more, and do better, which an other than honorable discharge will not allow.

CURRENT INFORMATION

The Petitioner currently resides in Mt. Airy, Maryland.  He is employed by Carroll County, Maryland, as a mechanic.   He has been with Carroll County, Maryland, for 4 years.  Within the first 2 years of his employment, he was promoted to Mechanic II.  He was recently moved to a position at the Wastewater Treatment Plant Operations, holding two State licenses in wastewater collections and treatment.  Along with his mechanic responsibilities, the Petitioner performs laboratory work as well.

See Attachment R (Performance Appraisals)

The Petitioner has no criminal record since leaving the U.S.  Navy in December, 2000.

CLOSING

The Petitioner is very remorseful for his past behavior.  He acknowledges the negative aspects of his military service - he knows he was wrong, but the Petitioner’s service is not without merit, he made significant contributions and accomplishments.  The Petitioner requests the board consider these milestones, as well as letters of good character submitted on his behalf.  His entire enlistment should not be judged and characterized as other than honorable.

See Attachment S (Character Statements)

The Petitioner respectfully requests he be granted the relief sought herein.

SUPPORTING DOCUMENTATION

Attachment A (DD Form 4-Enlistment/Reenlistment Document)
Attachment B (DD Form 2624-Specimen Custody Document)
Attachment C (NAVPERS 1070/613-Administrative Remarks)
Attachment D (NAVDRUGLAB SAN DIEGO CA MSG 12l528Z AUG 99)
Attachment E (NAVPERS 1070/613-Administrative Remarks)
Attachment F (NAVPERS 1626/7-Report & Dispo of Offenses - Front)
Attachment G (NAVPERS 1626/7-Report & Dispo of Offenses - Back)
Attachment H (Administrative Separation Processing Notice)
Attachment I (NAVPERS 1070/613-Administrative Remarks)
Attachment J (DD Form 553-Deserter/Absentee Wanted by the AF)
Attachment K (USS ELLIOT MSG 3l0430Z OCT 99)
Attachment L (DD Form 458-Charge Sheet)
Attachment M (Petitioner’s request dtd 29 Nov 00)
Attachment N (DD Form 214-Certificate of Discharge from AD)
Attachment O (NAVPERS 1070/605-History of Assignments)
Attachment P (Letters of App & Commendation, & Citations)
Attachment Q (NAVPERS l6l6/26-Eval Reports & Counseling Records)
Attachment R (Performance Appraisals)
Attachment S (Character Statements)

ATTESTATION

I, C_ L. P_ (Applicant), hereby state under oath that:

The factual allegations contained in this petition are true and correct to the best of my knowledge and belief.

(signed)
C_ L. P_

[Notary seal]

(signed)
for D_ P. P_, Esquire (Applicant Representative)
M_ & Associates
(address omitted)
(phone and fax numbers omitted)”

Applicant’s Remarks:  See attached petition.

Documentation

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

Applicant’s DD Form 214
Petition from M_ & Associates Attorneys and Counselor at Law, dtd November 28, 2005 (8 pgs). 
Pages from Applicant’s Service Record (39 pgs)
Performance Standards, dtd July 27, 2005 (4 pgs)
Mid-Year Employee/Supervisor Evaluation Form, dtd July 28, 2005
Employee Evaluation Form, dtd July 28, 2004 (2 pgs)
Employee Evaluation Form, dtd February 11, 2004 (3 pgs)
Performance Standards, dtd February 5, 2004 
Performance Standards, dtd January 10, 2002 (2 pgs)
Character Statement from D_ B_, Jr., dtd October 10, 2003
Character Statement from E_ J_, Sr., dtd October 1, 2003
Character Statement from J_ O_, dtd October 1, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19960427 - 19960923	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19960924		Date of Discharge:  20001208

Length of Service (years, months, days):

	Active:    04  02  15  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  435 days
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4 

Education Level:  12				AFQT:  43

Highest Rate:  OS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.5 (4)		Behavior:  3.3 (4)		OTA:  3.25

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/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  MILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events: 

960427:	Program waiver granted by CO NRD Philadelphia for marijuana use.

990806:	Applicant to unauthorized absence at 0530.

990806:	Applicant missed ship’s movement.

990812:	NAVDRUGLAB, SAN DIEGO, CA reported Applicant’s urine sample, received 990805, tested positive for THC.
[Extracted from Applicant’s supporting documents.]
 
990904:	Applicant from unauthorized absence at 0654 (29 days/surrendered).

990907:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0530, 990806 to on or about 0654, 990904, a period of about 29 days.
Violation of UCMJ, Article 87: Miss movement of the USS Elliot (DD-967) on or about 0700, 990806. 
Violation of UCMJ, Article 112a:  Wrongfully use THC (TETRAHYDROCANNABINOL) a schedule I controlled substance on or about 990715. 
	Award:  Forfeiture of $589.00 pay per month for 2 months, 45 days restriction to USS ELLIOT, extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

990907:	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 - commission of a serious offense. 
[Extracted from Applicant’s supporting documents].

990907:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to submit statements to the Administrative Board or to the Separation Authority in lieu of a board and to obtain copies of the documents used to support the basis for the separation.
[Extracted from Applicant’s supporting documents.]

990913:	Applicant to unauthorized absence at 0630.

001024:	Applicant from unauthorized absence (406 days).

001117:	Charges preferred against Applicant for violation of the Uniform Code of Military Justice (UCMJ) Article 86:  Unauthorized absence (UA) from 990913 to 001024.

001129:	Applicant requested an administrative discharge in lieu of a trial by court-martial.  Applicant acknowledged having consulted with counsel and having been fully advised of the implications of his request.  The Applicant acknowledged that he was guilty of violating Article 86 of the UCMJ.  The Applicant acknowledged his understanding that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing. [Extracted from Applicant’s supporting documents.]

001208:	DD 214:  Applicant discharged this date in lieu of trial by court martial with a characterization of service as under other than honorable conditions.

Service Record did not contain the Administrative Discharge package. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20001208 in lieu of a trial by court-martial (A and B) 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 (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant’s representative submitted the following as issue: equity review/consideration, 32 CFR 70.9(c)(3), highlighting the positive aspects of the Applicant’s service and his post-service conduct.  In regard to the Applicant’s service, there is credible evidence in the record that the Applicant used illegal drugs, a violation of Article 112a of the UCMJ.  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’s service was further marred by nonjudicial punishment proceedings for violations of Articles 86 and 87 of the UCMJ, and a second Article 86 violation to which he acknowledged guilt in order to avoid the consequences of a court-martial.  The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violations of Article 86, 87 and 112a are considered serious offenses and a punitive discharge is authorized if adjudged at a special or general court-martial.  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 NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered.  The Applicant, through his representative, provided employment performance standards and evaluations, and three letters of recommendation from a former co-worker and current supervisors as documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.  Therefore, no relief will be granted.  

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 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 29, effective 
11 Jul 2000 until 21 Aug 2002, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 86, unauthorized absence for a period more than 30 days upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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