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NAVY | DRB | 1999_Navy | ND99-01143
Original file (ND99-01143.rtf) Auto-classification: Denied


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

ex-OSSR, USN
Docket No. ND99-01143

Applicant’s Request
The application for discharge review, received 990825, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The applicant listed Phoenix Veterans Service Center as his representative on the DD Form 293. Subsequent to the applicant the applicant changed representation to the Veterans of Foreign Wars. In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

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: BAD CONDUCT/Convicted by special court martial, authority: NAVMILPERSMAN, Article 3640420.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. My Bad Conduct Discharge was due to one incident after I volentery requested help with a substance abuse problem I aqurred while serving in the military. It was not a problem to any of my shipmats nor was I ever in trouble for my use of illegal substance. I requested help.
I had never been in trouble, at any time during my service yrs.
2 Honorable Discharges
(1) bad conduct
Request to have my discharge upgrade to general under honorable conditions.

2. IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.3, Equity of Discharge, we ask the Board to consider the following factors.

•         The applicant received two prior honorable discharges for his service.
•         The applicant received the award of the Good Conduct Medal.
•         According to OPNAV 5216/145 dated April 10, 1986, the applicant self-referred himself for treatment for substance abuse.
•         It is reasonable that the applicant's debt arose because of his abuse.
Given the aforementioned circumstances, it is evident that the applicant was seeking to correct his problems. He dug a hole and was asking for help. Given the unique circumstances surrounding this individual case, we ask the Board for clemency.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (current enlistment and 2 prior enlistments)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        781213 - 811026  HON
                  USN                       811027 - 851022  HON
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 851023               Date of Discharge: 880205

 Length of Service (years, months, days):

         Active: 02 03 13
         Inactive: None

 Age at Entry: 32                          Years Contracted: 5

 Education Level: 12                        AFQT: 60

 Highest Rate: OS1

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.46 (3)    Behavior: 2.46 (3)                OTA: 2.80

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, NER, SSDR

 Days of Unauthorized Absence: 127

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

BAD CONDUCT/Convicted by special court martial, authority: NAVMILPERSMAN, Article 3640420.

 Chronological Listing of Significant Service Events :

851204:  Applicant briefed on Navy's policy on drug and alcohol abuse.

 860311:  Retention Warning: Advised of deficiency (Drug abuse), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

860410:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 1530, 14Mar86 to 0500, 16Mar86 (1 day/surrendered).
         Award: Restriction and extra duty for 15 days. No indication of appeal in the record.
860410:  Drug and Alcohol Abuse Report: Cocaine abuse, 1 to 3 times per week, January 1986 to March 1986, ashore off duty. Self referral March 1986. Medical officer and CAAC found applicant dependent and recommended Level III treatment. Commanding officer recommended retention and drug residential treatment. Comments: Member self referred for cocaine abuse. His potential for future productive naval service is contingent upon positive behavior changes resulting from Level III treatment.

860804:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 860802 having been an unauthorized absentee since 1300, 860702 from NAVTRASTA San Diego, CA.

861105:  Report of Return of Deserter. Applicant apprehended by civil authorities at San Deigo, CA. Returned to military control 861103 (2053).

861123:  Applicant to pretrial confinement.

870119:  Applicant from pretrial confinement.

870120:  Applicant to pretrial confinement.

870129:  Applicant from pretrial confinement.

870129:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 86, (2 Specifications).
         Specification 1: Unauthorized absence 2 Jul 86 until 1 Aug 86 (30 days).
 Specification 2: Unauthorized absence 1 Aug 86 until 3 Nov 86 (92 days).
          Charge II: violation of the UCMJ, Article 112A:
         Specification: Wrongful use of cocaine on 14Mar86
         Charge III: violation of the UCMJ, Article 123A:
         Specifications 1 - 9: Made and delivered checks with insufficient funds on the following dates: 13Feb86, 20Feb86, 29Jul86, 30Jul86, 1Aug86 (2), 2Aug86 (2), 3Aug86 and 7Aug86.
Charge IV: violation of the UCMJ, Article 134:
Specification 1: Dishonorably fail to pay a debt due on 30May86.
          Findings: to Charge I, II, III and IV and specifications thereunder, guilty.
         Sentence: CHL for 120 days, reduction to OSSR, Bad Conduct discharge.
         CA 870316: Sentence approved and except for that part of the sentence extending to a bad conduct discharge, will be executed, but the execution of that part of the sentence adjudging confinement in excess of 105 days is suspended for six months.

870220:  Applicant to unauthorized absence 0730, 20Feb87.

870223:  Applicant from unauthorized absence 2009, 23Feb87 (3 days/surrendered).

870626:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
880120:  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.            

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 880205 with bad conduct due to convicted by special court martial (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 first issue, he implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”. The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant is responsible for his actions and must accept the consequences of his misdeeds. The Board will not grant relief on the basis of this issue.

Regarding the applicant’s second issue, the Board noted that the applicant’s self-referral was not valid due to the applicant’s refusal to accept treatment. After reviewing the applicant’s entire service record, the Board found no mitigating circumstances that would warrant granting clemency to the applicant. Relief denied.

 Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until 13 Dec 89, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURTMARTIAL.

B. Secretary of the Navy Instruction 5420.174C of 22 August 19984 (Manual for Discharge Review, 1984) enclosure (1), Chapter 2, paragraph 2.24, COURT-MARTIAL SPECIFICATION, PRESUMPTION CONCERNING.

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


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