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Docket No. ND06-00961

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

FOR OFFICIAL USE ONLY

 ex-UTCR, USN
Docket No. ND06-00961

Applicant’s Request

The application for discharge review was received on 20060713.  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 personal appearance hearing discharge review before a traveling panel.  The Applicant did not designate a representative on the DD Form 293.  In the acceptance letter dated July 20, 2006 the applicant was notified that his case has been accepted for a personal appearance hearing in Washington, DC.  

Decision

A personal appearance discharge hearing was conducted in Washington, D.C. Metropolitan area on 20070919.  After a thorough review of the records, documentary 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 4 to 1 that the characterization of the Applicant’s service shall not change and 5 to 0 that the 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

1.  Reenlistment opportunity – Equity.
2.  Post service - Equity

Documentation

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

Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19900130 - 19900401	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19900402		Date of Discharge:  19911018

Length of Service (years, months, days):

	Active:    01  06  17  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  23 

Years Contracted:  4 (12 month extension)

Education Level:  16				AFQT:  39

Highest Rate:  UTCN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.87 (3) 	Behavior:  2.87 (3) 		OTA:  3.47

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Southeast Asia Medal w/ Bronze Star and FMF Device

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: 

900403:	Applicant briefed on Navy's policy of drug and alcohol abuse.

900404:	Retention Warning:  Advised of deficiency (You are being retained in the Naval Service in spite of your defective enlistment and induction due to fraudulent entry into the Naval Service as evidenced by your failure to disclose your pre-service drug use.  Cocaine abuse of 02 April 1989 prior to Navy DEP.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900404:	Retention Warning:  Advised of deficiency (You are being retained in the Naval Service in spite of your defective enlistment and induction due to fraudulent entry into the Naval Service as evidenced by your failure to disclose your pre-service involvement with Civil Authorities consisting of the following : 850828 driving the wrong way, Winston Salem, NC.  Paid $50.00, Age 18), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900605:	NJP for violation of UCMJ, Article 86: On or about 2120, 900602, without authority, absent himself from his appointed place of duty, to wit: BLDG 88NL, until on or about 0405, 900603, a period of about six hours and 45 minutes.
Violation of UCMJ, Article 108: On or about 1945, 900603, without authority willfully destroyed his recruit hard card by throwing it away.
	Award:  Forfeiture of $100.00 pay per month for 1 month.  No indication of appeal in the record.

900605:	Retention Warning:  Advised of deficiency (violation of the UCMJ Article 86: Absence from appointed place of duty and Art. 108: Damaging, destroying, or losing military property.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910814:	NJP for violation of UCMJ, Article 92 (2 specs): Dereliction in the performance of duties.
	Specification 1: Dereliction in the performance of duties, in that UT3 L_ (Applicant) negligently failed to stand his watch in a proper manner on 11 July 91.
	Specification 2: Having knowledge of a lawful order issued by the CO, NMCB FIVE, to wit: NMCBFIVEINST 1601.1J, dated 21 May 1987, failed to obey the same by wrongfully drinking alcoholic beverages while in a duty status on 11 July 91.
	Award:  Restricted to CBC, Port Hueneme, California for 30 days (suspended for 6 months); forfeiture of $200.00 pay per month for 2 months (suspended for 6 months); reduction to next inferior pay grade (suspended for 6 months); extra duties for 30 days (suspended for 6 months).  No indication of appeal in the record.

910814:	Retention Warning:  Advised of deficiency (your misconduct as evidenced by the Commanding Officer’s nonjudicial punishment of 5 June 1990 at which you were found guilty of violating the Uniform Code of Military Justice, Article 86-UA from 2120 hours, 2 June 1990, until 0405 hours, 3 June 1990, period of about six hours and 45 minutes; Violating the Uniform Code of Military Justice, Art.108- On 3 June 1990, willfully destroyed your recruit hard card by throwing it away; and by the Commanding Officer’s nonjudicial punishment of 14 August at which you were found guilty of violating the Uniform Code of Military Justice, Article 92- Specification 1: Derelict in the performance of your duties, in that you negligently failed to stand your watch in a proper manner on 11 July 1991; and Specification 2: Having knowledge of a lawful order issued by the CO, NMCB FIVE, to wit: NMCBFIVEINST 1601.1J, dated 21 May 1987, failed to obey the same by wrongfully drinking alcoholic beverages while in a duty status.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910904:	Applicant withdrawn from Level III for alcohol dependency when popped for cocaine.

910911:	Forfeiture of pay, reduction in pay grade and restriction awarded at NJP on 910814 vacated due to continued misconduct.
 
910911:	NJP for violation of UCMJ, Article 86: Absent from unit on 910909.
	Violation of UCMJ, Article 112a: Wrongful use of cocaine on or about 910816.
	Award:  Restriction to CBC for 45 days, extra duties for 45 days, forfeiture of $377.00 pay per month for 2 months, reduction to E-1.  No indication of appeal in the record.

910919:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment; misconduct due to drug abuse as evidenced by the Commanding Officer’s Nonjudicial Punishment of 11 September 1991 at which you were found guilty of violating the Uniform Code of Military Justice, Article 112a, wrongful use of cocaine; and misconduct due to commission of serious offenses as evidenced by the Commanding Officer’s Nonjudicial Punishment of 5 June 1990 at which you were found guilty of violating the Uniform Code of Military Justice, Article 108, willfully destroying Military Property of the United States by throwing away your recruit hardcard, and as evidenced by the Commanding Officer’s Nonjudicial Punishment of 14 August 1991 at which you were found guilty of violating the Uniform Code of Military Justice, Article 92, failure to obey a lawful written order issued by Commanding Officer, NMCB FIVE, to wit: NMCBFIVE Instructions 1601.1J, dated 21 May 1987, by wrongfully drinking alcoholic beverages while in a duty status.

910919:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

911002:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct; misconduct due to drug abuse; misconduct due to commission of serious offense.

911016:	BUPERS directed the Applicant's under other than honorable conditions discharge by reason of misconduct pattern.

911018:	Applicant declined treatment at a VA Hospital.

950213:	NDRB documentary record review Docket Number ND94-00889 conducted.  Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19911018 by reason of misconduct due to a pattern of misconduct (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).

Issue 1:  The Applicant stated during the personal appearance hearing his desire for a discharge characterization upgrade to enlist in the Army National Guard.  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

Issue 2:  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 certification of non-involvement with civil authorities.  The Applicant did not provide sufficient post-service testimony or documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  An upgrade to General (under honorable conditions) is not appropriate.

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 15560C, effective 15 Aug 91 until 
04 Mar 93), 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, Article 108 (Willfully destroyed government property),  112a (Wrongful use, possession of a controlled substance).

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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