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NAVY | DRB | 1999_Navy | ND99-00418
Original file (ND99-00418.rtf) Auto-classification: Denied


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

ex-ADAA, USN
Docket No. ND99-00418

Applicant’s Request
The application for discharge review, received 990203, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to convenience of government. The applicant requested a documentary record discharge review. The applicant listed AMERICAN LEGION as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991206. 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 unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.       I believe my discharge was unfair because I did not have possession of any illegal substance. They were found after my ex-wife left the house. She had possession of the house up to that day the illegal substance was found.
2.       It was also unfair because the clip and badge found in my possession were part of my ASF uniform.
3.       This former member further requests that the Board include provision of SECNAVINST 5420.174C.;enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from applicant
Letter from applicant's mother
Copy of Performance Appraisal
Special Contribution Award Recommendation
Letter of Recommendation
Letter of Appreciation
Performance Letters (9)
Service Excellence Letters (4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        860318 - 900301  HON
         Inactive: USNR (DEP)     860129 - 860317  COG

 Period of Service Under Review :
Date of Enlistment: 900302                Date of Discharge: 920430

 Length of Service (years, months, days):

         Active: 02 01 29
         Inactive: None

 Age at Entry: 22                           Years Contracted: 3

Education Level: 12                        AFQT: 50

 Highest Rate: AD3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (4)    Behavior: 3.50 (4)                OTA : 3.70

 Military Decorations: None

 Unit/Campaign/Service Awards: BATTLE"E"AWARD, NDSM, GCM, MUC

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

900302:  Reenlisted at HC-2 NAS NORFOLK VA for 3 years.

 910612:  NJP for violation of UCMJ, Article 111: Drunk or reckless driving.
         Award: Restriction to NASWF for 60 days. No indication of appeal in the record.

910619:  Retention Warning: Advised of deficiency (Alcohol abuse.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

911125:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
         Award: Restriction to NASWF for 7 days, Oral Admonition. No indication of appeal in the record.
920403:  Punishment of reduction in rate to E-2 suspended at CO's NJP on 911120 vacated due to continued misconduct.
        
920410:  NJP for violation of UCMJ, Article 112a: possession of a controlled substance; violation of UCMJ Article 121: Wrongful appropriation; violation of UCMJ Article 133: Threat communicating.
         Award: Forfeiture of $440.25 per month for 2 months, restriction to NASWF for 60 days, reduction to E-2. No indication of appeal in the record.

920414:  Medical officer found applicant to be physically or psychologically dependent on alcohol, applicant completed Level III August 91, brought in by security to clinic in March 92, "Mildly intoxicated" breathalizer 0.009, considered Level III failure.

920414:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offenses as evidenced by your service record, misconduct due to drug abuse, and Alcohol Abuse Rehabilitation (CAAC Level III) failure as evidenced by your inability or refusal to participate or cooperate in, or successfully complete said program.
920414:          Applicant advised of his rights and having elected not to consult 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.
920417:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, misconduct due to drug abuse, and Alcohol Abuse Rehabilitation failure.
920427:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920430 under other than honorable conditions for misconduct due to commission of a serious offense (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 found the applicant’s first two issues appropriate at Captain’s Mast or an Administrative hearing. To permit relief, an error or injustice must be found to have existed during the period of enlistment under review. There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge. There was no rights violation and no basis for relief.

The applicant submitted the following as issue 2: (EQUITY ISSUE). This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). 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, an error or injustice 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 provided letters of recommendation from his employment as documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief denied.

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 – COMMISSION OF A SERIOUS OFFENSE.

B. 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.

C. 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.

D. 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, D.C. 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 Street SE RM 309
                  Washington, DC 20374-5023       


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