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NAVY | DRB | 1999_Navy | ND99-01205
Original file (ND99-01205.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND99-01205

Applicant’s Request
The application for discharge review, received 990913, requested that the characterization of service on the discharge be changed to general/under honorable conditions and the reason for the discharge be changed to drug addiction. 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 000616. 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. Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. (EQUITY ISSUE) This former member proffers that the Navy's failure to treat his drug dependency resulted in his misconduct of record and subsequent UOTHC discharge. On the basis, he avers that upgrade characterization of service is warranted.

2. (EQUITY ISSUE) As the documentary evidence of record supports, this former member further opines that his post-service conduct has been sufficiently creditable to warrant the Board's clemency relief as authorized under provisions of SECNAVINST 5420.174C., enclosure (1), paragraph 9.3.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
American Legion's statement
Copy of statement of earnings and deductions dated February 10, 2000
Copy of certificate of completion for Apprenticeship Training dated June 25, 1996 at the occupation of Substance Abuse Counseling Aide
Copy of Clinton Community College transcript for Fall 1992, Spring 1995
Copy of Associate in Science Degree dated June 16, 1995
Copy of certificate of honor dated June 16, 1995
Statement from applicant's ex-wife dated January 30, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 850329               Date of Discharge: 870805

 Length of Service (years, months, days):

         Active: 02 04 17
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 30

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (1)    Behavior: 3.80 (1)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 57

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600. Discharged in absentia.

 Chronological Listing of Significant Service Events :

850403:  Applicant briefed on Navy's policy on drug and alcohol abuse.

860807:  NJP for violation of UCMJ, Article 123: Intent to defraud, to wit: falsely make the signature of his own as an endorsement to a U.S. Postal money order of the sum of $200.00.
         Award: Forfeiture of $300 per month for 2 months, bread and water for 3 days, reduction to AR. Reduction suspended for 6 months. No indication of appeal in the record.
860807:  Retention Warning from USS ENTERPRISE (CVN-65): Advised of deficiency (Misconduct; forgery of a postal money order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

861113:  Vacate suspended reduction to AR awarded at NJP of 86Aug07 due to subsequent violation of the UCMJ.
870120:  NJP for violation of UCMJ, Article 86: Unauthorized absence from unit from 86Nov20 until 86Nov21, violation of UCMJ Article 121: Theft of personal property on 86Oct23, violation of UCMJ Article 112A: Wrongful use of cocaine on 86Dec03.
         Award: Forfeiture of $329 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
870309:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (18 specs):
         Specification 1 - 18: Unauthorized absence from man's muster.
         Charge I: violation of the UCMJ, Article 107:
         Specification: Made a false official record with intent to deceive on 87Feb03.
         Finding: to Charge I and II and the specifications thereunder, guilty.
         Sentence: Forfeiture of $438.00, CHL for 24 days, bread and water for 3 days.
         CA action 870316: Sentence approved and ordered executed.

870528:  NJP for violation of UCMJ, Article 86: Absent from his unit 0700, 4May until 2017, 18May87 (14 days/surrendered).
         Award: Restriction and extra duty for 14 days. No indication of appeal in the record.
870622:  Transient Personnel Unit notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by (1) NJP of 7 August 1986 for forgery of a postal money order, (2) NJP of 20 January 1987 for (a) Theft of personal property and (b) Wrongful use of cocaine (3) SCM of 9 March 1987 for making a false official record with intent to deceive, and misconduct due to a pattern of misconduct as evidenced by four punishments under the UCMJ during the current enlistment (NJPs of 7 August 1986, 20 January 1987, 28 May 1987 and SCM of 9 March 1987), and misconduct due to drug abuse as evidenced by NJP of 20 January 1987 for wrongful use of cocaine.
870622:          Applicant advised of his rights and having elected not to consult having consulted 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.
870623:  Applicant to unauthorized absence 0700, 23Jun87.

 870702:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, pattern of misconduct and drug abuse. Commanding officer's comments: AR (applicant) is being processed in accordance with references (a) and (b) for commission of a serious military offense, pattern of misconduct and drug abuse. He received a Page 13 counseling/warning entry on 7 August 1986. AR (applicant) has made not effort to improve his military behavior. He was scheduled for a dependency evaluation by CAAC, Treasure Island on two separate occasions (22 June 1987 and 30 June 1987). AR (applicant) missed both appointments due to being in an unauthorized absence status. He is currently UA since 0700, 23 June 1987. Further retention on active duty is not in the best interest of the member or the Navy. Therefore, it is recommended that AR (applicant) be separated from the naval service with an other than honorable discharge by reason of misconduct, in absentia.

870722:  Applicant declared a deserter. Unauthorized absence since 0700, 23Jun87.
870731:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

870805:  Applicant returned from unauthorized absence status as of 0800, 5Aug87 (42 days/surrendered). Discharged in absentia 5Aug87.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 870805 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).

 The applicant’s first issue that the Navy’s failure to treat his drug dependency and lead to the applicant’s misconduct is without merit. The NDRB found that the applicant was scheduled for drug dependency screening on two occasions and failed to keep the appointments, (870622 and 870630). It is noted that the applicant went UA on 870623, did not return to his duty station, and was discharged in absentia. Relief is denied.
The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. The applicant must be aware that there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A, effective 870615 - 890110), Article 3630600, SEPARATION OF ENLISTED MEMBERS 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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