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NAVY | DRB | 1999_Navy | ND99-01250
Original file (ND99-01250.rtf) Auto-classification: Denied


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

ex-AZ2, USN
Docket No. ND99-01250

Applicant’s Request
The application for discharge review, received 990928, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing before a traveling panel closest to Great Lakes Tng Ctr North Chicago, IL. The applicant listed a private representative on the DD Form 293. 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 000713. 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, authority: NAVMILPERSMAN, Article 3630600.

The NDRB did note an administrative error on the original DD Form 214. Block 25, Separation Authority should read: “NAVMILPERSMAN, Article 3630600” vice “MILPERSMAN 3630360”. The original DD Form 214 should be corrected or reissued as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. Denied right under Article 37 UCMJ

2. Administative action procedure__ defective

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Twenty-nine pages from applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               880915 - 920506  HON
         Inactive: USNR (DEP)     880829 - 880914  COG

 Period of Service Under Review :
Date of Enlistment: 920507               Date of Discharge: 950915

 Length of Service (years, months, days):

         Active: 03 04 09
         Inactive: None

 Age at Entry: 21                          Years Contracted: 3 (2 months extension)

 Education Level: 12                        AFQT: 24

 Highest Rate: AZ2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.47 (6)    Behavior: 3.47 (6)                OTA: 3.87

 Military Decorations: None

 Unit/Campaign/Service Awards: JMUC, MUC, OSR, NDSM, SASM, SSDR, GCM

 Days of Unauthorized Absence: 00

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

941222:  NAVDRUGLAB [Jacksonville, FL], reported applicant’s urine sample, received 941216, tested positive for THC.

UNKNOWN:         NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana as evidenced by the positive urinalysis dated 22 December 1994. [Extracted from CO's letter dated 6Jul95.] No further information found in service record.

950108:  Applicant arrested and charged with aggravated assault, shooting into a dwelling, possession of a short barrel shotgun, and criminal mischief.
950316:  Civil Conviction: Duval County Courthouse for violation of Shooting into a dwelling, worthless checks (2 counts).
 Sentence: Jail for 196 days, fined $403 (69 days credit).
950512:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to a civil conviction for shooting into a dwelling, worthless checks (2 counts) and your positive urinalysis for marijuana.
950512:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
950527:  Applicant released from confinement.

 950606:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to commission of a serious offense, a civil conviction for shooting into a dwelling and worthless checks and drug abuse and that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

950623:  NAVDRUGLAB, Jacksonville, FL], reported applicant’s urine sample, received 950616, tested positive for THC.

950628:  Drug and Alcohol Abuse Report: Marijuana abuse, abuse denied, ashore off duty. Random urinalysis, 13Jun95. CAAC recommended separate not via VA hospital. Physician found applicant not dependent and recommended separate not via VA hospital. Commanding officer recommended separate not via VA hospital.

950706:  Drug and or Alcohol Dependency Evaluation: Drug abuse and alcohol abuser. Applicant is not psychologically or physically dependent on drug/alcohol. No rehabilitation needed.

950706:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to civil conviction and misconduct due to drug abuse.

950824:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to civil conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 950915 under other than honorable conditions for misconduct due to civil conviction (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 NDRB found no evidence to support the applicant’s first issue that he was “denied right under Article 37 UCMJ.” There was no evidence in the record or provided by the applicant to support the allegation that there was any unlawful influencing action of court.
Relief is not warranted.

The applicant’s second issue that the “administrative action procedure was defective” is without merit. The applicant was afforded all his rights under the UCMJ and an Administrative Board based on the preponderance of the evidence recommended discharge with an other than honorable discharge. The commanding officer forwarded his recommendation of OTH to BUPERS where the applicant’s discharge was directed as other than honorable. The NDRB found no procedural error in the execution of the applicant’s discharge. Relief not warranted.
Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON 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 view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.af.mil ”.

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
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      

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