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NAVY | DRB | 1999_Navy | ND99-00528
Original file (ND99-00528.rtf) Auto-classification: Denied


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

ex-BMSR, USNR
Docket No. ND99-00528

Applicant’s Request
The application for discharge review, received 990303, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed the American Legion as his 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 - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. (EQUITY ISSUE) This former member's mother (name deleted), requests upgrade of her son's UOTHC discharge on the basis of a mitigating alcohol problem that he had during service and on the positive aspects of his naval service including his wartime duty in southwest Asia.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Death Certificate
Copy of DD Form 214
Statement from applicant's mother dated May 3, 1993
Letter from priest dated January 4, 1996
One hundred and ten pages from applicant's service/medical records

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: 880517               Date of Discharge: 911011

 Length of Service (years, months, days):

         Active: 03 02 02
         Inactive: None

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 12                        AFQT: 24

 Highest Rate: RMSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.33 (3)    Behavior: 3.15 (4)                OTA: 3.33

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NDSM, SASM

 Days of Unauthorized Absence: 79

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

880722:  Applicant briefed on Navy's drug and alcohol abuse policy.

900413:  Retention Warning from USS DURHAM (LKA-114): Advised of deficiency (Violation of the UCMJ Article 134 Check, worthless, making and uttering - by dishonorably failing to maintain funds.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

901025:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty, violation of UCMJ, Article 91: Insubordinate conduct towards a petty officer, violation of UCMJ, Article 92: Failure to obey an order.
         Award: Forfeiture of $440 per month for 1 month, restriction for 15 days. Forfeiture of $244 per month suspended for 3 months. No indication of appeal in the record.
910502:  NJP for violation of UCMJ, Article 86: Unauthorized absence 0700, 23Apr91 to 2300, 29Apr91 (6 days)
         Award: Forfeiture of $000 per month for 0 month(s), restriction and extra duty for 00 days, reduction to E-2. No indication of appeal in the record.
910503:  Retention Warning from USS DURHAM (LKA-114): Advised of deficiency (Violation of the UCMJ Article 86 - Unauthorized absence without authority.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
910731:  Applicant declared a deserter. Unauthorized absence since 0700, 1Jul91.

910912:  Applicant from deserter status, 1038, 12Sep91.

 910911:  USS DURHAM (LKA-114) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by the number of nonjudicial and judicial punishments this enlistment and misconduct due to drug abuse/use.
910916:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86.
         Specification: Unauthorized absence 0700, 1Jul91 to 1028, 12Sep91 (73 days/surrendered).
         Charge II: violation of the UCMJ, Article 112A (2 specs):
         Specification 1: Cocaine use on 20Jun91
         Specification 2: Marijuana use on 7Sep91.
         Finding: to Charge I and II and the specifications thereunder, guilty.
         Sentence: Forfeiture of $564.00, confinement for 30 days, reduced to E-1.
         CA action 910916: Sentence approved and ordered executed.

910916:          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.
910918:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

910930:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 911011 under other than honorable conditions for misconduct due to a pattern of misconduct (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 applicant’s issue 1, the Board sympathizes with the applicant’s mother over the loss of her son, however, the Board does not accept alcohol abuse as a factor sufficient to exculpate the applicant from the consequences of his misconduct. While the Board recognizes that Alcoholism and alcohol abuse are not, in themselves, offenses which constitute grounds for punishment, applicants who commit offenses while drinking are still responsible for their actions.

Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. (C, Part IV) The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.

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. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 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, 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 St SE Rm 309
                  Washington, D.C. 20374-5023     



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