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NAVY | DRB | 1999_Navy | ND99-00642
Original file (ND99-00642.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND99-00642

Applicant’s Request
The application for discharge review, received 990413, 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 000121. 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 – frequent involvement of a discreditable nature with civil or military authorities, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (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
Letter of Commendation dtd 6 Nov 84
Substance Abuse Report
VA Supervisory Social Worker Letter of Reference dtd 21 Apr 99
Letter of reference from Pastor, dtd 23 Apr 99
Letter of reference from mother of applicant dtd 21 Apr 99
Letter of reference from fiancee of applicant dtd10 May 99

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     830314 - 830710  COG

 Period of Service Under Review :
Date of Enlistment: 830711               Date of Discharge: 850510

 Length of Service (years, months, days):

         Active: 01 10 00
         Inactive: None

 Age at Entry: 19                          Years Contracted: 6

Education Level: 12                        AFQT: 65

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (3)    Behavior: 3.33 (3)                OTA: 3.66

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

Days of Unauthorized Absence: None

 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 :

840330:  NJP for violation of UCMJ, Article 91 (2 specs): Disrespectful in language towards his superior petty officer, violation of UCMJ Article 92 (3 specs): Failure to obey a lawful order issued by his superior petty officer, violation of UCMJ Article 134: Drunk and disorderly in the berthing space aboard USS Boone and violation of UCMJ, Article 134: Assault on a superior petty officer while in the execution of duties as master at arms by a threat of bodily harm.
         Award: Forfeiture of $298.20 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

840426:  Retention Warning from [USS BOONE]: Advised of deficiency (Drug abuse), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

850131:  NAVDRUGLAB [Jacksonville, FL] reported applicant’s urine sample, received 850117, tested positive for THC.

850214:  Civil conviction: Adjudged guilty of disorderly intoxication. Duval County Court awarded fine of $45.25.
850307:  NJP for violation of UCMJ, Article 134: Wrongful use of a cannabis substance from 17 Nov 84 to 17 Jan 85.
         Award: Forfeiture of $347 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
850410:  [USS BOONE] notified applicant of intended recommendation for discharge under other than honorable conditions by reason of drug abuse and misconduct- pattern – frequent involvement of a discreditable nature with civil or military authorities as evidenced by NJPs of 30 March 84, 7 March 85, civil conviction of

850416:  Applicant advised of his rights and having elected 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.
850427:  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. Commanding officer’s comments: [(verbatim), if appropriate]:

850503:  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 850510 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 the applicant’s issue 1, the Board found there is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs/alcohol (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided ample documentation of good character and conduct. Therefore no relief will be granted. The applicant 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.

 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., 92, failure to obey a lawful order] 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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