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NAVY | DRB | 1999_Navy | ND99-00176
Original file (ND99-00176.rtf) Auto-classification: Denied


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

ex-FR, USNR
Docket No. ND99-00176

Applicant’s Request
The application for discharge review, received 981116, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 000313. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was 4 to 1 that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern – frequent involvement of a discreditable nature with civil or military authorities, authority: NAVMILPERSMAN, Article 3630600.
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

(EQUITY ISSUE) As the documentary evidence of record supports, this former member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2 copies)
Copy of rating decision dated June 28, 1995 (2 pages)
 Letter of reference from Ms. W____ dtd 10 Mar 00
Letter of reference from Mr. R____ undated
Letter of reference from SFC J______ and SFC J________ undated
Letter of reference from CW4 O__ dtd 7 Mar 00
Letter of reference from Ms. W____ dtd 10 Mar 00
Letter of reference from Ms. Harriet S_____, Dixie Auto Parts dtd 11 Mar 00
Letter of reference from Mr. James H_____, Dixie Auto Parts dtd 11 Mar 00
Social Security Statement dated 29 Sep 99
 Trident Regional Medical Center Operative
2 Letters from Dr. Mike T_____, dtd 19 Dec 90

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 820430               Date of Discharge: 841002

 Length of Service (years, months, days):

         Active: 02 02 06
         Inactive: 00 02 26

 Age at Entry: 22                          Years Contracted: 6

 Education Level: 12                        AFQT: 38

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (1)    Behavior: 2.80 (1)                OTA: 3.20

 Military Decorations: None

 Unit/Campaign/Service Awards: BER

Days of Unauthorized Absence: 45

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern – frequent involvement of a discreditable nature with civil or military authorities, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

820727:  Applicant ordered to active duty for 36 months under the Active Mariner Program.
820802:  Applicant briefed upon and certified understanding of Navy policy concerning illegal use of drugs.
830325:  Applicant to unauthorized absence 0745, 25Mar83.

 830328:  Applicant from unauthorized absence 0745, 28Mar83 (3 days/surrendered).
830722:  Applicant tested positive for cannabinoids.

830823:  Urine sample tested positive for cannabinoids.

830921:  Applicant tested positive for THC.

 830923:  NJP for violation of UCMJ, Article 134: Use of marijuana on 23Aug83.
         Award: Forfeiture of $321 per month for 2 months, restriction and extra duty for 45 days, reduction to FA. No indication of appeal in the record.
831025:  Retention Warning from USS CANOPUS: Advised of deficiency (drug abuse), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. Member acknowledged and refused to sign.

831005:  Substance Abuse Report: Marijuana abuse, less than monthly, Jan80-Jul83, ashore off duty. Urinalysis in July 1983. SAC found applicant not dependent and recommended Level I treatment. Commanding officer recommended retention and recommended referral to NASAP/NDSAP. Comments: Applicant has potential for continued productive naval service.

 840309:  NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence from 0630, 84Jan27 until 0630, 84Jan30 (3 days/surrendered) and 0730-0830, 84Feb19.
         Award: Forfeiture of $300 per month for 1 month. No indication of appeal in the record.
840309:  Retention Warning from USS CANOPUS: Advised of deficiency (Unauthorized absence from 27Jan84-30Jan84, and 0730-0830, 19Feb84.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

840406:  NJP for violation of UCMJ, Article 134: Use of marijuana between 12Feb84 and 12Mar84.
Award: Forfeiture of $250 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
840407:  Applicant broke restriction awarded at CO's NJP on 84Apr06. Unauthorized absence1245, 7Apr84.

840424:  Substance Abuse Report: Marijuana abuse, less than monthly, Jan80-Mar84, ashore off duty, urinalysis. CAAC found applicant not dependent and recommended separate from service. Commanding officer recommended separation. Comments: FR (applicant) has no potential for productive naval service. He is presently being processed for administrative discharge for drug abuse, ref (c) confirms prior drug abuse.

840507:  Applicant declared a deserter. Unauthorized absence since 1245, 7Apr84 breaking restriction.
840512:  Applicant surrendered from unauthorized absence 12May84 (35 days/surrendered).
840526:  Applicant to unauthorized absence 0745, 26May84 after breaking restriction.
840530:  Applicant surrendered from unauthorized absence 1100, 30May84 (4 days/surrendered) and retained for medical treatment.

840822:  Naval Station, Charleston, SC notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct drug abuse and misconduct - pattern – frequent involvement of a discreditable nature with civil or military authorities.
840822:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
840822:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct – pattern - frequent involvement of a discreditable nature with civil or military authorities and misconduct - drug abuse. Commanding officer's comments (verbatim):

840919:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct - pattern – frequent involvement of a discreditable nature with civil or military authorities.

 PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 841002 under other than honorable conditions for misconduct pattern frequent involvement of a discreditable nature with civil or military authorities (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

In response to the applicant’s issue 1 of post-service clemency, the Board found that the applicant’s post-service conduct was not sufficient to warrant an upgrade. The applicant had committed serious misconduct while in the service consisting of several unauthorized absences, multiple drug uses, breaking restriction and desertion, some of which are court martial offenses. The post-service provision still takes into account the applicant’s service, in addition to providing the Board with a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Although the applicant presented some evidence to show that he is a productive member of society, it was not enough to warrant an upgrade to Honorable. The Board will not grant relief on the basis of this issue.

 Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560, Change 10/84, effective
17 Sep 84 until 15 Dec 85), Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT.
B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article [e.g., 86, for unauthorized absence for a period in excess of 30 days] if adjudged at a Special or General Court-Martial.
C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, DC 20310-1809

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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Washington Navy Yard
                  720 Kennon St SE Rm 309
                  Washington, DC 20374-5023       


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