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NAVY | DRB | 2001_Navy | ND01-00406
Original file (ND01-00406.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND01-00406

Applicant’s Request
The application for discharge review, received 010212, 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 010907. 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/Separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. I am writing to ask the board to consider the upgrade of my discharge to General/Under Honorable Conditions. I joined the Navy at a young age, as most do. I had dreams and visions of what I could be, or I was looking for me. Well this was not the best place for a person to search for themselves when they are still a "rebel". I am writing you now 9 years later. I am very happily married. I have worked for Ford for 5 years 8 months. I have my own house. I am doing very well, but I still have this thorn in my side. I was a quitter. I bailed, for this I am ashamed. I do not regret my actions, I would not be the man I am today. If the path was different. What I ask of the board is to consider this upgrade. If necessary I am willing to repay the government/military 2 years of reserve time with the agreement to provide an upgraded discharge. With what ever outcome is achieved, I will continue to be proud I served as part of the Gulf War in the U.S. Navy. Thank you for your time. God Bless

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     891207 - 900207  COG

 Period of Service Under Review :
Date of Enlistment: 900208                        Date of Discharge: 920115

 Length of Service (years, months, days):

         Active: 01 11 08
         Inactive: None

 Age at Entry: 17 Parental Consent                Years Contracted: 4

 Education Level: 10                                 AFQT: 64

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.30 (2)    Behavior: 3.30 (2)                OTA: 3.30

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 105

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

UNDER OTHER THAN HONORABLE CONDITIONS/separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

 Chronological Listing of Significant Service Events :

900214:  Applicant briefed on Navy's policy on drug and alcohol abuse.

900816:  Alcohol and drug dependency evaluation: Polysubstance dependent, not physiologically dependent. Recommend Level III treatment. Comments: AA meeting/DAAP meetings until decision of retention is made.

901112:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence on 0730, 9Oct90 to 0900, 10Oct90 (1 day/surrendered), (2) Absent from appointed place of duty on 0430 24Oct90, violation of UCMJ, Article 92: Fail to obey a lawful order on 24Oct90, to wit: to clean the tables.
         Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.
901113:  Retention Warning: Advised of deficiency (Unauthorized absence and disobeying a lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910214:  NJP for violation of UCMJ, Article 86: Absent without leave, violation of UCMJ, Article 92: Failure to obey order or regulation.
         Award: Forfeiture of $400 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
910620:  Chemical dependency evaluation: Hallucinogen and cannabis dependence. Patient is psychiatrically fit for duty. The patient is considered to be in need of chemical dependency treatment which has already begun and which consists of the following:
 a. abstinence from alcohol and all recreational drugs.
b. nightly attendance at NA or AA meetings except when on duty.
c. finding a sponsor and beginning a treatment program with that sponsor.
d. Level III ARC or VA rehabilitation treatment.
e. if retained in Navy, full year aftercare program including abstinence and AA/NA three times per week.
910621:  Applicant to unauthorized absence 1500, 21Jun91.

910721:  Applicant from unauthorized absence 0141, 21Jul91.

 910730:  NJP for violation of UCMJ, Article 86: Unauthorized absence 1500, 20Jun91 to 0141, 21Jul91 (31 days/surrendered).
         Award: Forfeiture of $375 per month for 2 months, bread and water for 3 days, reduction to SR. No indication of appeal in the record.
910730:  Applicant found fit for confinement.

910829:  Applicant to unauthorized absence 0715, 29Aug91.
910918:  Applicant declared a deserter.

 911110:  Applicant apprehended by civilian authorities on 0915, 10Nov91. Returned to military control 1010, 10Nov91 (73 days/apprehended).
911115:  Charges of violation of UCMJ, Article 86 (2 specs): Unauthorized absence, violation of UCMJ, Article 87 (3 specs): Missing movement, violation of UCMJ, Article 112a, violation of UCMJ, Article 134, violation of UCMJ, Article 85. Referred to special court-martial.
Separation package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920115 under Other Than Honorable conditions in lieu of a trial by court-martial (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).

Issue 1. The applicant states, he joined the Navy at a young age, is happily married, has been employed by Ford for 5 years and 8 months, owns a home but has this thorn in his side (implying the OTH discharge). Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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 civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. The applicant did not provide any of these documents. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until
04 Mar 93, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURTMARTIAL.

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 “ afls10.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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