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NAVY | DRB | 2000_Navy | ND00-00776
Original file (ND00-00776.rtf) Auto-classification: Denied


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

ex-AR, USNR
Docket No. ND00-00776

Applicant’s Request
The application for discharge review, received 000605, 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 010126. 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from applicant
Character reference dated October 5, 1999
Character/job reference dated September 28, 1999
Character reference dated May 30, 2000
Character reference dated May 30, 2000
Copy of DD Form 214
Forty pages from applicant's service/medical records

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: 910712               Date of Discharge: 930505

 Length of Service (years, months, days):

         Active: 01 09 18
         Inactive: 00 00 05

 Age at Entry: 20                          Years Contracted: 8

 Education Level: 12                        AFQT: 38

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (2)    Behavior: 3.80 (2)                OTA : NOB

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM with 1 Star

 Days of Unauthorized Absence: 40

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

910718:  Commenced active duty for period of 2 years under the GenDet AA Training Program.
930205:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86.
         Specification: Unauthorized absence from 0630, 2Dec92 until 1400, 11Jan93 (40 days/surrendered).
         Charge II: violation of the UCMJ, Article 87.
         Specification: Miss movement on 17Dec92.
         Charge III: violation of the UCMJ, Article 112A.
         Specification: Wrongful use of marijuana.
         Finding: to Charge I, II and III and the specification thereunder, guilty.
         Sentence: Forfeiture of $542.00, confinement for 30 days, reduced to AR.
         CA action 930215: Sentence approved and ordered executed.

930226:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense and misconduct due to Drug abuse.
930228:          Applicant advised of his rights and having elected not to consult 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.
930316:  Substance Abuse/Dependency Evaluation: Applicant found not dependent on marijuana.
930331:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense and misconduct due to Drug abuse.

930505:  BUPERS directed the applicant's discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930505 under Other Than Honorable conditions for misconduct due to Commission of a serious offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

The applicant provided no issues on DD form 293 but did attach a personal letter, which is the basis of this response. The applicant states he went through a very trying time in his life, suffering from the loss of a very close family member (his mother’s youngest brother). Comforting his mother was the basis for his unauthorized absence (UA) and missing ship’s movement. His use of illegal drugs was not clearly explained. The applicant also states he has done his very best to be an upright, model citizen and provide character reference letters to support his claim. The board determined, the applicant failed to provide sufficient documentation to support his excuses for being UA for 40 days and missing ship’s movement. There was no acceptable excuse provided to explain his use of illegal drugs, which requires mandatory processing for separation, by Navy regulations. Relief 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 (E). 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 occurred, during the period of enlistment in question. No such error existed in this case. 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 15560C), effective 15 Aug 91 until
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.
B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86, for unauthorized absence for a period in excess of 30 days, if adjudged at a Special or General Court-Martial.
 C. 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.

D. 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.

E. 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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