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NAVY | DRB | 1999_Navy | ND99-00517
Original file (ND99-00517.rtf) Auto-classification: Denied


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

ex-ETSR, USN
Docket No. ND99-00517

Applicant’s Request
The application for discharge review, received 990216, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000104. 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 ask for the quickest way out in order to serve my family. I was awarded 45 days in the brig from my court martial. I've done 12 yrs. with a O.T.H. I feel I've paid my debt in full.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from applicant dated July 13, 1998
Forty pages from applicant's service record
Copy of Employee Performance Review dated November 16, 1998

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     811207 - 820317  COG

 Period of Service Under Review :
Date of Enlistment: 820318               Date of Discharge: 860624

 Length of Service (years, months, days):

         Active: 04 03 07
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 48

 Highest Rate: ET3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (3)    Behavior: 3.62 (5)                OTA : 3.65

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

Days of Unauthorized Absence: 30

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 :

820319:  Applicant signed the drug and alcohol abuse statement of understanding.

 820524:  Applicant identified through urinalysis screening as a user/abuse of illegal drugs or marijuana (cannabanoids) and voluntarily admitted to use of this drug. A drug waiver has been granted.
830627:  Applicant signed the drug and alcohol abuse statement of understanding.

840130:  Retention Warning: Advised of deficiency (Drug abuse as evidenced by positive urinalysis test for THC.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
850202:  Applicant to unauthorized absence on 0745-0850, 2Feb85 (1 hour and 5 minutes/surrendered).
850330:  Applicant to unauthorized absence 0800-1019, 30Mar85 (2 hours and 19 minutes/surrendered).
860214:  NJP for violation of UCMJ, Article 86: Absent from duty section muster on 0915, 10Feb86, violation of UCMJ Article 92 (2 specs): Failure to obey a lawful order on 10Feb86 from SM1 and SMC to get out of rack and muster on the quarter deck as a ship's tour guide, violation of UCMJ Article 91: Disrespect towards a noncommissioned officer on 10Feb86, to wit: by saying Fuck this shit when told to get out of his rack and muster on the quarter deck
         Award: Forfeiture of $442 per month for 2 months, restriction and extra duty for 25 days, reduction to ETSN. Forfeiture, restriction, extra duty and reduction suspended for 6 months. No indication of appeal in the record.
860306:  Applicant missed ship's movement.

 860317:  Vacate suspended forfeiture, restriction, extra duty and reduction awarded at CO's NJP dated 14Feb86.
860416:  Extension of enlistment for 24 months made operative.

860417:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86.
         Specification: Unauthorized absence 1515, 15 February 1986 to 0613, 17 March 1986 (27 days/surrendered).
         Charge II: violation of the UCMJ, Article 87.
         Specification: Missed movement of USS MARS on 17 February 1986.
         Charge III: violation of the UCMJ, Article 134.
         Specification 1: Possessed and used unauthorized military identification card on 15 February 1986.
         Specification 2: Broke restriction on 15 February 1986.
         Findings: to Charge I and specifications thereunder, guilty.
         Sentence: Fine of $425.00, restriction for 2 months, confinement for 45 days, and reduction to ETSR.
         CA action not found in service record.

860529:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
860530:          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 and to submit a statement.
860605:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

860617:  CNMPC 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 860624 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 applicant’s issue is non decisional and does not warrant relief.

 The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. The applicant must be aware that 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, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560, Change 10/85, effective
16 Dec 85 until 05 Oct 86), Article 3630600, SEPARATION OF ENLISTED MEMBERS 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, D.C. 20374-5023     


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