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NAVY | DRB | 2000_Navy | ND00-01018
Original file (ND00-01018.rtf) Auto-classification: Denied


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

ex-MSSR, USNR
Docket No. ND00-01018

Applicant’s Request
The application for discharge review, received 000831, 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 010301. 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. My use of alcohol impaired my ability to serve.

2. My use of drugs impaired my ability to serve.

3. The punishment that I got before, and during time of discharge were to harsh - it was much worse than most people got for the same offense.

4. I believe that do to the fact that I had to experience a court martial as a young service man. My record followed me to my last duty station, in where my superior officers had me labeled before I was on my ship 24 hours or less. This was also an isolated and minor offenses. Indicated by the Naval Base in San Diego CA. (NTC)

5. Personal problems impaired my ability to serve.

6. My ability to serve also impaired by my youth and immaturity.

7. My record of Article 15's indicates only isolated and minor offenses.

8. Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.

9. My average conduct and efficiency ratings/behavior and proficiency marks were pretty good.

 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: USN                        None
         Inactive: USNR            None

 Period of Service Under Review :
Date of Enlistment: 910802               Date of Discharge: 920915

 Length of Service (years, months, days):

         Active: 00 11 00
         Inactive: 00 02 13

 Age at Entry: 20                          Years Contracted: 6

Education Level: 12                        AFQT: 48

 Highest Rate: MSSR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: 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 :

911015:  Ordered to active duty for 24 months under the Fireman Apprenticeship program.

920305:  NJP for violation of UCMJ, Article 92: Failed to obey a lawful order by consuming alcohol within the limits of the barracks complex on or about 920227.
         Award: Forfeiture of $183.00 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.

920305:  Retention Warning from [SSC, NAVAL TRAINING CENTER, SAN DIEGO, CA]: Advised of deficiency (On 920305 you were found guilty at OIC's NJP for violation UCMJ, Article 92: Failure to obey a lawful written order by wrongfully consuming alcohol), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920417:  Retention Warning from [SSC, NAVAL TRAINING CENTER, SAN DIEGO, CA]: Advised of deficiency (Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920417:  NJP for violation of UCMJ, Article 86: (3 Specs), Without authority failed to go at the time prescribed to appointed place of duty, 0001 920403, 0001 920404 and 0001 920405.
         Award: Forfeiture of 7 days pay for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.

920423:  Retention Warning from [SSC, NAVAL TRAINING CENTER, SAN DIEGO, CA]: Advised of deficiency (Indebtedness as evidenced by failing to honor the agreement of a contract by not making payment of monies owed in the amount of $643.41 to General Rent-A-Car Service and by writing a bad check to the Navy Exchange in the amount of $735.00), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920614:  DAAR indicates alcohol abuse, found dependent by medical officer,                          recommended for separation via VA Hospital.

 920616:  Civil conviction at Norfolk General District Court for driving under the influence.
         Sent: Fined $350.00 plus court cost, 90 days in jail (suspended), operators license suspended for 6 months, ASAP.

920625:  NAVDRUBLAB NORFOLK, VA urinalysis report indicate applicant tested positive for THC/Cocaine.

920630:  NJP for violation of UCMJ, Article 86: (2 Specs), Absent from unit, violation of UCMJ Article 87: Missing movement, violation of UCMJ Article 134: underage consumption of alcoholic beverages, violation of UCMJ Article 112a: Wrongful use of controlled substance.
Award: Forfeiture of $300.00 per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days. No indication of appeal in the record.
920717:  [USS BAINBRIDGE (CGN 25)] notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and by reason of a pattern of misconduct.
920717:          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 and to submit a statement.
920724:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and pattern of misconduct.

920828:  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 920915, in absentia, 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 issues 1 and 2, the Board does not accept alcohol/drug abuse as a factor sufficient to exculpate the applicant from the consequences of his misconduct. While the Board recognizes that alcoholism and alcohol abuse are not, in themselves, offenses which constitute grounds for punishment, it reminds applicants who commit offenses while drinking that they are still responsible for their actions. They must accept the consequences of their misconduct or misbehavior, whether committed before or after they received rehabilitation treatment. No relief will be granted based on this issue.

In response to the applicant’s issue 3, the Board disagrees with the applicant’s statement that his punishment was too harsh. The applicant was only in the service for 11 months, and during that short time, he received 3 retention warnings, 3 CO’s NJPs and a civil conviction for DUI. The Board found that the applicant’s service is accurately characterized as having been performed under other than honorable conditions. Therefore, relief is denied based on this issue.

In the applicant’s issues 4 and 7, the applicant refers to a court martial that he experienced. The Board found that the applicant did not have a court martial. He then goes on to say that his “record followed me to my last duty station” and that “my superior officers had me labeled” and his offenses were isolated and minor. The Board does not consider drug abuse, missing movement, DUI, or failing to obey orders “isolated and minor offenses.” In fact, the offenses are quite significant and the applicant could have received a court martial for any one of the listed offenses, which in turn would result in a felony conviction. Instead, the applicant was merely administratively separated from the Navy under other than honorable conditions, which the Board felt was truly fitting, considering the applicant’s service record. Relief denied.

In the applicant’s issue 5, the Board found nothing in the records nor did the applicant submit any supporting documentation that showed that his personal problems were of sufficient magnitude that they could not be resolved through standard military channels or by the applicant’s chain of command. In fact, the Board found that the applicant’s age, education, test scores, prior service, promotions and awards were sufficient to qualify him for enlistment. The Board will not grant relief on the basis of this issue.

In the applicant’s issue 6, the Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his immaturity 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.

In the applicant’s issue 8, the Board does not have the authority to grant “clemency.” The Board reviews the propriety (did the USN/USMC follow its own rules in processing the applicant for discharge) and equity (did the applicant receive a discharge characterization in keeping with the USN/USMC guidance or was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge. Finally, the Board is authorized to consider post-service factors in the recharacterization of a discharge (what has the applicant done since discharge to become a contributing member of his community and to society in general). No relief will be granted based on this issue.

In the applicant’s issue 9, the Board did not find marks contained in the service record. Regardless, the applicant’s misconduct clearly outweighs any good evaluation marks he may have received. No relief will be granted 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, 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 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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