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NAVY | DRB | 2001_Navy | ND01-00126
Original file (ND01-00126.rtf) Auto-classification: Denied


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

ex-ICFN, USN
Docket No. ND01-00126

Applicant’s Request
The application for discharge review, received 001107, 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 010503. 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 (verbatim)

1. The undesirable discharge is inequitable because it is based on one (1) isolated incident during this, the veterans second, enlistment. Vet previously served a 3 year enlistment and was discharged honorably.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Letter from Greater San Diego Chamber of Commerce dated October 12, 1990
Copy of meritorious service award dated October 12, 1990
Copy of certificate of appreciation dated October 5-14, 1990
Copy of letter re: qualification as enlisted surface warfare specialist dated November 18, 1989
Copy of certificate authorizing to wear the Enlisted Surface Warfare Specialist Breast Insignia dated November 18, 1989
Copy of letter re: selection of junior sailor of the quarter dated June 25, 1990
Copy of letter of appreciation dated August 20, 1990
Copy of certificate of leadership dated October 12, 1990
Copy of citation for 1 April thru 31 June 1990
Copy of letter of commendation dated March 4, 1990
Copy of letter of appreciation dated August 20, 1990

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USNR              820930 - 851017  HON
         Inactive: USNR            851018 - 880929  COG

 Period of Service Under Review :
Date of Enlistment: 881130               Date of Discharge: 910319

 Length of Service (years, months, days):

         Active: 02 03 20
         Inactive: None

 Age at Entry: 24                          Years Contracted: 3

 Education Level: 9                         AFQT: 78

 Highest Rate: IC2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.76 (5)    Behavior: 3.68 (5)                OTA : 3.76

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, HSM, CGSOR, AFEM, ESWSP

 Days of Unauthorized Absence: 33

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 :

890907:  Retention Warning: Advised of deficiency (Failure to qualify General Damage Control within five months of reporting on board.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        

910221:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance, to wit: cocaine, violation of UCMJ, Article 86: Absenting himself from his unit, to wit: USS GRIDLEY from 0730, 17Jan91 to 1400, 19Feb91 (33 days/surrendered).
         Award: Forfeiture of $614 per month for 2 months, restriction and extra duty for 45 days, reduction to IC3. No indication of appeal in the record.
910221:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense.
910221:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
910225:  Medical officer evaluated applicant and found him not to be dependent on drug or alcohol and unfit for further duty.
910302:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense.

910313:  CNMPC 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 910319 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).

In response to the applicant’s issue, the Board found that the applicant implies that a permissive doctrine exists whereby one in the military is allowed an "isolated incident". The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant is responsible for his actions and must accept the consequences of his misdeeds. The Board will not grant relief on the basis of this issue.

The following is provided for the applicant’s edification. 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 (E). 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 15560A), Change 8, effective
21 Aug 89 until 14 Aug 91, 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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