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NAVY | DRB | 2000_Navy | ND00-00979
Original file (ND00-00979.rtf) Auto-classification: Denied


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

ex-FR, USNR
Docket No. ND00-00979

Applicant’s Request
The application for discharge review, received 000801, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 010209. 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 (verbatim)

1. During that time I was young, married and wasn't ready for the responsibilities which were at hand causing me to make a foolish mistake of smoking a marijuana cigarette
But since that incident I have made a dramatic change. I am the father of three dearly loved children, single, with a steady work history, currently working as a merchant marine. Dedicated citizen of my community, active member in church.
For the only remaining issue I wish to resolve is my pride in being a veteran of the U.S. Navy. So I am pleading to you allow me the opportunity of making a mends; not only to myself, but to my fellow servicemen, and my country.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

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: 910109               Date of Discharge: 930611

 Length of Service (years, months, days):

         Active: 02 05 03
         Inactive: None

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 12                        AFQT: 35

 Highest Rate: FR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (2)    Behavior: 3.50 (2)                OTA: 3.50

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM with Bronze Star, SSDR

 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 :

910620:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0300, 24May91 to 1955, 9Jun91 (16 days/surrendered).
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
910620:  Retention Warning from Service School Command, Great Lakes: Advised of deficiency (Poor military performance, by wrongfully absent yourself from your organization, to wit: service school command, Great Lakes, IL.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910919:  Applicant declared a deserter since 0515, 19Aug91.

910925:  Applicant returned from deserter status on 0030, 25Sep91 (36 days/surrendered).

 910930:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0515, 19Aug91 to 0030, 25Sep91 (36 days/surrendered).
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 14 days. Forfeiture, restriction and extra duty suspended for 6 months. No indication of appeal in the record.
921217:  NJP for violation of UCMJ, Article 134: Incapacitation for performance of duties through prior indulgence in intoxication liquor or drug on 12Dec92.
         Award: Forfeiture of $392.85 per month for 2 months, restriction and extra duty for 45 days, reduction to FR. Reduction suspended for 6 months. No indication of appeal in the record.
921220:  Retention Warning from USS MERRIMACK (AO-179): Advised of deficiency (Incapacitated for performance of duties through prior wrongful indulgence in intoxicating liquor or drug.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930402:  NAVDRUGLAB, Norfolk, VA reports applicant's urine sample received 930329 tested positive for THC.

930407:  Vacate suspended reduction to FR awarded at CO's NJP of 17Dec92 due to continued misconduct.

930407:  NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substance, to wit: THC on 29Mar93.
         Award: Forfeiture of $407 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
930409:  USS MERRIMACK (AO-179) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse.
930409:          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.
930415:  Substance abuse screening: Applicant found non-dependent poly substance use.
930521:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse.

930527:  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 930611 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).

In the applicant’s issue 1, the Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his youth was a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief is not warranted based on this issue.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 5, effective 05 Mar 93 until 21 Jul 94), 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 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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