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NAVY | DRB | 1999_Navy | ND99-01098
Original file (ND99-01098.rtf) Auto-classification: Denied


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

ex-BTFR, USN
Docket No. ND99-01098

Applicant’s Request
The application for discharge review, received 990817, 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 000427. 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

 1. The following account supports my request to have my other than honorable discharge changed to honorable:

My discharge was inequitable because it was based on an incident that resulted from my fear for my mother's and younger siblings' safety back home. When I called my home on several occasion, my father would not tell me where my mother was. When I did finally get in touch with her--she, my brother and sister had to relocate for her safety. My father had become very abusive and had threaten them on several occasions. During the same time, my maternal grandmother who had been in remission with cancer, became sicker and required my mother's care. All of these incidents combined to make being away from my hometown very hard and it continually affected my performance as a Navy seaman. I was afraid to talk to anyone about my family problems and decided to leave the base and come home to take care of these matters before they accelerated into bigger problems.

My father phoned the base and my return trip was arranged by my commanding officer and I returned to the base. This was an isolated incident and the overall report of my conduct while in the Navy was satisfactory.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (Member 1 (2 copies))

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)              891030 - 900611  COG

 Period of Service Under Review :
Date of Enlistment: 900612               Date of Discharge: 920910

 Length of Service (years, months, days):

         Active: 02 02 30
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 28

 Highest Rate: BTFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.50 (4)    Behavior: 3.05 (4)                OTA: 2.90

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM with Bronze Star, SSDR

 Days of Unauthorized Absence: 45

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 :

910708:  Applicant to unauthorized absence 0700, 8JUL91.

 910709:  Applicant from unauthorized absence 0700, 9JUL91 (1 day/surrendered).
910710:  Applicant to unauthorized absence 0700, 10JUL91.

910711:  Applicant from unauthorized 0700, 11JUL91 (1 day/surrendered).

 910913:  NJP for violation of UCMJ, Article 86 (4 specs): (1) Unauthorized absence from 1830, 18JUN91 until 1755, 20JUN91 (1 day/surrendered), (2) 0715, 10JUL91 until 0715, 11JUL91 (1 day/surrendered)0, (3) 0700, 12JUL91 until 0735, 14AUG91 (33 days/surrendered), (4) 0715, 31AUG91 until 0715, 3SEP92 (3 days/surrendered), violation of UCMJ Article 87: Miss the movement of ship on 15JUL91.
         Award: Forfeiture of $376 per month for 2 months, restriction and extra duty for 45 days, reduction to BTFR. No indication of appeal in the record.
911009:  Retention Warning from USS SAIPAN: Advised of deficiency (You are establishing a record of minor disciplinary infractions and a pattern of misconduct.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

911018:  NJP for violation of UCMJ, Article 86 (12 specs): Miss restricted men's muster on 1830, 17SEP91, (2) 0515, 18SEP91, (3) 0615, 19SEP91, (4) 1830, 20SEP91, (5 and 6) 0615, and 1830, 21SEP91, (7) 0615, 22SEP91, (8) 0615, 24SEP91, (9 and 10) 0615 and 1235, 2OCT91, (11) 0615, 3OCT91, and (12) 0614, 6OCT91.
         Award: Forfeiture of $300 per month for 1 month, restriction and extra duty for 15 days. No indication of appeal in the record.
920512:  Applicant to unauthorized absence 0730, 12MAY92.

 920513:  Applicant from unauthorized absence 1130, 13MAY92 (1 day/surrendered).
920526:  Applicant to unauthorized absence 0730, 26MAY92.

 920601:  Applicant from unauthorized absence 1600, 1JUN92 (6 days/surrendered).

920630:  NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence, violation of UCMJ Article 90: Disobeying a lawful order.
         Award: Forfeiture of $392 per month for 1 month, restriction and extra duty for 45 days. No indication of appeal in the record.
920717:  NJP for violation of UCMJ, Article 86: Unauthorized absence for 2 days, violation of UCMJ Article 92: Disobeying a lawful order.
         Award: Forfeiture of $392 per month for 1 month, bread and water for 3 days. No indication of appeal in the record.
         
920727:  USS SAIPAN (LHA-2) 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 4 nonjudicial punishments under the UCMJ, and by reason of misconduct due to Commission of a serious offense as evidenced by nonjudicial punishment held on 13SEP91, 30JUN92, 17JUL92 and by reason of misconduct due to drug abuse as evidenced by NAVDRUGLAB Norfolk Msg 201003Z Jul 92.
920728:          Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to waive all rights.
920731:  Medical Officer Evaluation: Applicant not physically or psychologically dependent or physiologically addicted.

920806:  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. Commanding officer’s comments (verbatim): SNM signed statement of awareness on 28 Jul 92 and acknowledged understanding of his rights. BTFR (applicant) recently tested positive on a command directed urinalysis for THC. Since reporting onboard USS SAIPAN SNM has been to CO's NJP on 4 separate occasions. SNM has demonstrated no initiative to comply with the rules and regulations of the military. SNM demonstrates no potential for further service and is a detriment to the crew. I strongly recommend that he be discharged under other than honorable conditions as soon as possible.

920901:  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 920910 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 family problems lead to his unauthorized absence. There is no indication that the applicant tried to use his chain of command to resolve his personal problems or that his problems were of such severity that they could not be resolved by means other than unauthorized absence. Regardless, family problems do not justify drug abuse. The applicant mentions one episode of unauthorized absence, which was a result of trying to resolve family issues. His record shows, however, that he went UA on 7 separate occasions, to include a period of 33 consecutive days (desertion), missed restricted men’s muster on 12 occasions, disobeyed a lawful order on 2 occasions, missed ships movement, and tested positive for THC (drug abuse). These violations of the UCMJ occurred over a one-year period, a clearly defined and consistent pattern of misconduct. Several of the applicant’s violations were court-martial offenses, which could have resulted in a punitive discharge, if adjudged at court-martial. The applicant was issued a retention warning, after his first NJP, giving him the opportunity to change his behavior. He violated that retention warning by subsequent and repeated misconduct. The applicant’s Commanding Officer was within his legal authority to discharge the applicant under Other Than Honorable conditions, by reason of misconduct due to a Pattern of misconduct. The discharge was proper and equitable. Relief is 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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