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NAVY | DRB | 1999_Navy | ND99-00916
Original file (ND99-00916.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND99-00916

Applicant’s Request
The application for discharge review, received 990625, requested that the characterization of service on the discharge be changed to General/under Honorable conditions. 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 000411. 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 (verbatim)

 1. Stated in Administrative Remarks that discharge with General discharge by misconduct.

2. AOL last time had to do with a mixed up of records - was not paid for 6 months due to my UA, was out of money, frustrated at length of time to correct error in misplacement of records (were sent to deceased person's file) had not seen family for years. Immaturity and Frustration led to the conduct.

3. Since discharge I have led an exemplary life style as evidenced by letter of recommendation I have completed Drug & Alcohol program & attended AA meetings regularly. I request that my discharge be upgraded to General under Honorable conditions.

4. The head injury & the stress from the headache & the loss of the use of the left arm due to pin being put in all added to the State of mind that led to the misconduct.

5. My discharge should be upgraded from Other than Honorable Conditions because in the Administrative Remarks it stated that I was discharged with a General discharge by reason of Misconduct.

6. At the time of the last offense I had just been transferred to the base. My records were sent to the deceased persons file and I was listed as legally dead. I was not paid for a period of about 6 months. I lived some distance from the base and my work place. I had to get up almost 2 hours early just to get to work on time at my own expense. I was living off of what a little I had accumulated in my bank account for this period of time. I was young and immature and used alcohol as a crutch for my problem. I had not seen my
family for more than a year and one day all the stress from the head injury, the shoulder injury and the hassle of the job became to much for me. I jumped on a plane and went to see my family for a week. I came back on my own and turned myself in ready to face the consequences.

7. Since my discharge, I have taken control of my life. I have completed a Drug and Alcohol Program and am attending AA meeting regularly. I have attended college and have a good job. My character is reference by the letter attached. I feel that my discharge should be upgraded to General under Honorable Conditions, because that is what was stated in the administrative remarks and the reasons that caused my behavior in the military no longer exist.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Administrative Remarks
Copy of Letter of Completion from Intensive and Supportive Outpatient Treatment
Copy of Discharge/Transfer Summary
Reference Letter from Wiley College
Employment Reference Letter

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     851230 - 860209  COG

 Period of Service Under Review :
Date of Enlistment: 860210               Date of Discharge: 870612

 Length of Service (years, months, days):

         Active: 01 04 03
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4 (24 month extension)

Education Level: 16                        AFQT: 79

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.40 (2)    Behavior: 2.40 (2)                OTA: 3 .20

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 22

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 :

860611:  Retention warning.

 860612:  NJP for violation of UCMJ, Article 134: As a result of previous indulgence in intoxicating liquor, incapacitated for the proper performance of his duties as a school student, violation of UCMJ Article 92: Failed to obey a lawful written order by possessing/consuming alcoholic beverage in the BEQ.
         Award: Forfeiture of $179.00 per month for 1 month, reduction to E-2. No indication of appeal in the record.

870312:  UA from 870312-870313(1day/S).

870327:  NJP for violation of UCMJ, Article 86: UA, (4 Specifications), UA 0730 870202 to 1300 870210 )(8days/S), UA 0730 870217 to 1230 870219 (2days/S), UA 0730 870225 to 1300 870225, UA 0730 870316 to 0730 870317 (1day/S).
         Award: Extra duty for 30 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.
870409:  Punishment of reduction in rate to FR suspended at CO's NJP of 870327 vacated due to continued misconduct.

870428:  Rehabilitation Counseling Specialist interviewed applicant after he was referred to Counseling and Assistance Center (CAAC) after an unauthorized absence due to alcohol abuse, he also concurs with the medical officers findings of alcohol dependence and recommendation for Level II treatment, recommended applicant attend the CAAC Level II Outpatient Counseling program beginning 870504 and ending 870529.

870428:  UA from 870428-870504 (6days/S).

870513:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of alcohol abuse rehabilitation failure and misconduct due to the Commission of a serious offense.
870513:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to waive all rights.

870519:  Substance Abuse Report: Medical officer found the applicant dependent, is amenable and eligible, recommended Level II treatment.

870529:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of alcohol abuse rehabilitation failure and misconduct due to the Commission of a serious offense.

870603:  CNMPC directed the applicant's discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.

870605:  UA from 870605-870609 (4days/S).
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 870612, Under Other Than Honorable conditions for misconduct due to Commission of a serious offense (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 issues 1 and 5, the Board determined these issues are without merit. The applicant claims the administrative remarks, of an unidentified document, states he was to be discharged with a General for misconduct. The applicant did not provide a copy of that document, nor was the Board able to locate any such document. Every official document the Board found in the applicant’s record stated the characterization of discharge could result in or shall be Other Than Honorable (OTH). The applicant signed a statement of awareness, which included acknowledgement that his discharge could result in an OTH discharge. COMNAVMILPERSCOM directed the applicant’s discharge as Other Than Honorable for misconduct. The discharge was proper and equitable. Relief denied.

In the applicant’s issues 2 and 6, the Board determined these issues are without merit. The applicant claims his immaturity and frustration over his financial situation led to his misconduct. Immaturity and frustration are insufficient reasons for the applicant’s blatant disregard for Navy regulations. The applicant had a chain of command to consult with, as well as the Navy relief to assist with his personal problems. The Board determined this discharge was proper and equitable. Relief denied.

In the applicant’s issue 3, the Board determined this issue is without merit. The applicant claims he leads an exemplary life style but has not provided sufficient documentation to support his claim. The Board determined the discharge was proper and equitable. Relief denied.

In the applicant’s issue 4, the Board determined this issue is without merit. The applicant claims his state of mind due to his physical condition led to his misconduct. The applicant’s decision to violate the UCMJ to alleviate any stress he may have felt, as a result of his physical condition, was the wrong decision to make and he was held accountable for his actions. He had other options and failed to take them. The discharge was proper and equitable. Relief denied.

In the applicant’s issue 7 the Board determined this issue is without merit. The applicant states that because he has taken control of his life and because an unidentified document exists that indicates he should receive a General discharge that his discharge should be upgraded to General. The applicant has not provided sufficient documentation to show he is living the life of a creditable, productive citizen, worthy of an upgrade to his discharge. Additionally, the Board found no document that states the applicant should have received a General discharge. The discharge was proper and equitable. Relief denied.

The following is provided for the applicant’s benefit. 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, subsequent to leaving military service. The NDRB reviews the propriety (did the Navy follow its own rules in processing the applicant for discharge) and equity (did the applicant receive a discharge characterization in keeping with Navy guidance or was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge to determine if proper procedures were followed. This applicant’s discharge was proper and equitable. Additionally, the NDRB is authorized to award clemency for post-service factors (what has the applicant done since discharge to become a contributing member of his/her community and to society in general). Those factors include but are not limited to the following: Evidence of continuing educational pursuits (transcripts, diploma, degree or vocational-technical certificates), a verifiable employment history (letter of recommendation from employer), documentation of community service (letter from activity/community group), certificate of non-involvement with civil authorities (police records check) and proof of not using drugs (detoxification certificate). The applicant did not provide enough documentation of good character or conduct, which would warrant an upgrade to his discharge. The applicant is encouraged to continue to establish a reputation of good character and document his accomplishments. Documentation to support any claim of good character is a must to receive any consideration based on post-service achievements. He remains eligible for a personal appearance hearing, to discuss his post-service accomplishments, provided an application is received by the NDRB within fifteen years from the date of his discharge. Legal representation at the hearing is advisable.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560, Change 7/86, effective
15 Dec 86 until 14 Jun 87), Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92: Failure to obey a lawful order or regulation, 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 Street SE Rm 309
                  Washington, D.C. 20374-5023     


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