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NAVY | DRB | 1999_Navy | ND99-01004
Original file (ND99-01004.rtf) Auto-classification: Denied


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

ex-DCFN, USN
Docket No. ND99-01004

Applicant’s Request
The application for discharge review, received 990721, 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 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 - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

The NDRB did note an administrative error on the original DD Form 214. Block 24, Character of Service should read: “Under Other Than Honorable Conditions” vice “Other Than Honorable”. The original DD Form 214 should be corrected or reissued as appropriate.





PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. (EQUITY ISSUE) His violations of the UCMJ notwithstanding, this former member opines that his otherwise creditable service period is sufficient to warrant separation under honorable conditions.

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.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     881101 - 881113  COG

 Period of Service Under Review :
Date of Enlistment: 881114               Date of Discharge: 920720

 Length of Service (years, months, days):

         Active: 03 08 07
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 26

 Highest Rate: DC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.53 (3)    Behavior: 3.53 (3)                OTA: 3.47

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR (2), MUC, AFEM, NDSM, NUC, NER, SASM with 2 Bronze Stars, KLM

 Days of Unauthorized Absence: 72

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 :

881115:  Applicant briefed on Navy policy on drug and alcohol abuse.

900720:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 6-9Jul90 (3 days).
         Award: Forfeiture of $300 per month for 1 month, restriction for 20 days. Forfeiture of $150 for 1 month suspended for 6 months. No indication of appeal in the record.
900720:  Retention Warning from USS RANGER (CV-61): Advised of deficiency (You have committed one or more violations of the Uniform Code of Military Justice, or you have been convicted of an offense by civil court.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

911114:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 3 October 1991 to 6 October 1991 (3 days).
         Award: Restriction and extra duty for 15 days, reduction to FA. Reduction suspended for 6 months. No indication of appeal in the record.
911114:  Retention Warning from USS RANGER (CV-61): Advised of deficiency (Unauthorized absence from unit 3OCT91 to 6OCT92.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920414:  Applicant declared a deserter.

920521:  NJP for violation of UCMJ, Article 86 (2 specifications): Unauthorized absence from 1200, 23FEB92 to 0700, 7MAR (12 days/surrendered), (2) Unauthorized absence from 0700, 14MAR92 to 0725, 7MAY92 (54 days/ surrendered), violation of UCMJ Article 87: Missed ship's movement on 24FEB92, violation of UCMJ Article 112A (2 specifications): (1) Wrongfully use marijuana on 8MAY92, (2) Wrongfully possess Ativan on 8MAY92, violation of UCMJ, Article 134: Wrongfully and unlawfully make under oath a false statement on 7MAY92.
         Award: Forfeiture of $501 per month for 2 months, restriction and extra duty for 45 days, reduction to DCFN. No indication of appeal in the record.
920521:  USS RANGER (CV-61) 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 three UCMJ punishments committed during current enlistment, misconduct due to commission of serious offenses as evidenced by the Article 86 (unauthorized absence from unit from 14 MAR 92 to 7 MAY 92), 87, and 134 (false swearing), UCMJ, offenses committed during current enlistment, and misconduct due to drug abuse as evidenced by the drug abuse offenses committed during current enlistment.
920521:          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 and a statement.
920529:  Drug/Alcohol Medical Evaluation: Not drug dependent, but a drug abuser.
920602:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to a Pattern of misconduct, commission of a serious offense and drug abuse.

920702:  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 920720 under Other Than Honorable conditions for misconduct due to a Pattern of misconduct (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).

In the applicant’s issue 1, the Board determined this issue is without merit. The applicant claims that his otherwise creditable service is sufficient to warrant separation under Honorable conditions. The applicant was found guilty of desertion and possession of a controlled substance at Captain’s mast. He had NJP on three occasions and received two retention warnings, which he ignored. The applicant did not serve honorably, and his discharge accurately characterizes his military service to his country. He did not provide any documentation of post-service accomplishments which would support upgrading his discharge. The discharge was proper and equitable. Relief denied.

In the applicant’s issue 2, the Board determined this issue is without merit. The applicant requests consideration for post-service conduct. 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 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 . The applicant 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. 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 – A PATTERN OF MISCONDUCT.

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 St SE Rm 309
                  Washington, D.C. 20374-5023     


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