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NAVY | DRB | 1999_Navy | ND99-01144
Original file (ND99-01144.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND99-01144

Applicant’s Request
The application for discharge review, received 990820, 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. My discharge was improper because I was wrongfully accused of distributing 1/8 ounce of cocaine and to conspire with a friend to distribute. I did not do any of the above. I was there at the wrong place and wrong time.
I had a military lawyer that had no prior experience in my situation. And I feel my lawyer did not do a good job or did her job at all.
I served in the military for 3 years and extended for another year. I was entitled to wear the National Defence Medal, Armed Forces Expeditionary Medal and Sea Service Deployment Ribbon (2 nd award).
I've never experimented with cocaine nor sold it in my life. My urinalysis and the search of my barracks was negative. Most of all my witnesses (the drug dealers) said I had nothing to do with what happened that evening.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     870207 - 871215  COG

 Period of Service Under Review :
Date of Enlistment: 871216               Date of Discharge: 911007

 Length of Service (years, months, days):

         Active: 03 09 22
         Inactive: None

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 12                        AFQT: 33

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.53 (3)    Behavior: 3.33 (3)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, SSDR (2), NDSM

 Days of Unauthorized Absence: None

 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 :

871217:  Applicant briefed on Navy's policy on drug and alcohol abuse.

 880516:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700, 2May88 to 0800, 10May88 (8 days).
         Award: Restriction for 10 days, extra duty for 20 days. Extra duty for 10 days suspended for 6 months. No indication of appeal in the record.
880621:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Absent from appointed place of duty from 0700-1530, 2Jun88, (2) Fail to go at time prescribed to appointed place of duty on 0900-0909, 15Jun88.
         Award: Forfeiture of $335 per month for 1 months, placed on uniform liberty program during next inport period. No indication of appeal in the record.
880624:  Retention Warning from Tactical Electronic Warfare Squadron 134, San Francisco, CA: Advised of deficiency (Unauthorized absence (3 specifications.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

881206:  NJP for violation of UCMJ, Article 128: Assault on a petty officer.
         Award: Forfeiture of $335 per month for 1 month. No indication of appeal in the record.
881210:  Retention Warning from Tactical Electronic Warfare Squadron 134, San Francisco, CA: Advised of deficiency (Assault on a petty officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890910:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order on 23Aug89.
         Award: Reduction to SR. Reduction suspended for 6 months. No indication of appeal in the record.
890912:  Retention Warning from VAQ-134, San Francisco, CA: Advised of deficiency (Failure to obey a lawful order and false official statement.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

891208:  Vacated suspended reduction to SR awarded at CO's NJP of 10Sep89 due to continued misconduct.
891208:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Absent from appointed place of duty on 0800, 13Nov89, (2) Fail to go at time prescribed to appointed place of duty on 0715, 27Nov89 to 0715 28Nov89 (1 day).
         Award: Correctional custody for 30 days. No indication of appeal in the record.
910316:  General Court-Martial.
         Charge I: violation of the UCMJ, Article 112A:
         Specification: Wrongfully distribute 1/8 ounce of cocaine on 7Nov90.
         Findings: to Charge I and specification thereunder, guilty.
         Sentence: Fine of $500.00, restriction for 5 months, confinement for 5 months, reduction to SR.
         CA 910620: Sentence approved and ordered executed.

910416:  Applicant to confinement.

910821:  Applicant from confinement.

910823:  Transient Personnel Unit, Seattle, WA notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by general court-martial conviction of 16 April 1991 for wrongful distribution of 1/8 ounce of cocaine, due to a pattern of misconduct as evidenced by a general court-martial conviction of 16 April 1991; commanding officer's nonjudicial punishment of 18 Dec 1989, commanding officer's nonjudicial punishment of 10 Sep 1989, commanding officer's nonjudicial punishment of 9 Dec 1988, commanding officer's nonjudicial punishment of 21 Jun 1988, commanding officer's nonjudicial punishment of 16 May 1988 all during your current enlistment and due to commission of a serious offense as evidenced by general court-marital conviction of 16 April 1991.
910823:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
910823:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

910927:  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 911007 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).

Responding to the applicant’s issue, the Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion, associated with his discharge at the time of issuance, and that his rights were prejudiced thereby. Furthermore, r elevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. 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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