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NAVY | DRB | 2001_Navy | ND01-00851
Original file (ND01-00851.rtf) Auto-classification: Denied


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

ex-AOAR, USN
Docket No. ND01-00851

Applicant’s Request
The application for discharge review, received 010612, 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 020221. 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. My discharge was inequitable because at that time I was experiencing psychiatric difficulties for which I believe the NAVY was aware of. After my discharge I entered into treatment for Psychotic Disorder. Currently I remain in treatment at Community Counseling Center, 101 BACON ST. PAWTUCKET R.I. 02860 (401) 722-3560.
Please consider that I was not responsible for my behaviors at that time, and truly did not understand the General Under Honorable Discharge which I would have accepted.

 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: USNR (DEP)     890722 - 890807  COG

 Period of Service Under Review :
Date of Enlistment: 890808               Date of Discharge: 930709

 Length of Service (years, months, days):

         Active: 03 11 08
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 36

 Highest Rate: AO3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.94 (7)    Behavior: 2.94 (7)                OTA: 3 .00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 50

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 :

890810:  Applicant briefed on Navy's policy on drug and alcohol abuse.

900131:  Applicant to unauthorized absence 1200, 31Jan90.

 900202:  Applicant from unauthorized absence 1241, 2Feb90 (2 days/surrendered).

921118:  Applicant issued a military protection order concerning allegation of assault consummated by a battery.
921124:  Applicant apprehended by civilian authorities and charged with peeping tom and trespassing, family abuse, child/spouse support.
921124:  Applicant to unauthorized absence 0600, 24Nov92.

 921125:  Civil Conviction: [General District Court, Virginia Beach] for violation of family abuse and child/spouse support.
         Finding under advisement continued to 5May93, peeping tom and trespassing, appearance required. Applicant released to shore patrol at 1630, 25Nov92.
 Sentence: Protective order entered for one year, pay $100.00 per month by allotment and continue to pay car payment and rent.
921125:  Applicant from unauthorized absence 1630, 25Nov92 (1 day/surrendered).

921130:  NJP for violation of UCMJ, Article 86: Absent from place of duty on 0600, 24Nov92, violation of UCMJ, Article 90: Willfully disobeying superior commissioned officer, violation of UCMJ Article 128 (3 specs): (1) Unlawfully strike wife on her body with his hands on 21Apr92, (2) Unlawfully strike wife on her body with his hands on 31Jul92, (3) Unlawfully strike wife on her body with his hands on 7Nov92.
         Award: Restriction and extra duty for 45 days, reduction to AOAN. Reduction suspended for 6 months. No indication of appeal in the record.
921228:  Civil Conviction: Traffic Division Municipal Center, Virginia Beach VA for violation of suspended operators license.
 Sentence: Fine $50.00, court cost $26.00.
930120:  Charge of peeping tom dismissed.

930125:  Vacate reduction to AOAN awarded at CO's NJP dated 30Nov92.

930303:  NAVDRUGLAB, Norfolk, VA reports applicant's urine sample tested positive for THC.

930324:  NJP for violation of UCMJ, Article 86 (4 specs): (1) Fail to go to appointed place of duty on 0615-0710, 22Jan93, (2) Unauthorized absence 0830, 22Jan93 to 0645, 25Jan93 (2 days), (3) Fail to go to appointed place of duty on 0615, 1Feb93, (4) Fail to go to appointed place of duty on 0615, 12Feb93, violation of UCMJ, Article 92 (2 specs): (1) Fail to obey lawful order on 0700, 3Feb93, to wit: to medical for separation physical, (2) Fail to obey lawful order on 0700, 11Feb93, to wit: to medical for separation physical, violation of UCMJ, Article 112A: Wrongfully use THC (marijuana) between 18Jan93 and 1Feb93.
         Award: Reduction to AOAA. Reduction suspended for 6 months. No indication of appeal in the record.

930325:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and the commission of a serious offense.
930325:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
930416:  Vacate reduction to AOAA awarded at CO's NJP of 24Mar94 due to continued misconduct.
930516:  Applicant declared a deserter. Unauthorized absence since 0001, 16Apr93.
930518:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense and drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

930601:  Applicant from unauthorized absence (45 days).

 930603:  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.

930607:  Applicant reduced to AOAR.
930628:  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 930709 under other than honorable conditions for misconduct due to commission of a serious offense (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).

 The applicant’s first issue states: “My discharge was inequitable because at that time I was experiencing psychiatric difficulties for which I believe the NAVY was aware of.” The NDRB found no evidence in the record supporting this issue, and the applicant failed to provide sufficient documentation to support this issue. Relief is denied.

The applicant’s second issue states: “After my discharge I entered into treatment for Psychotic Disorder. Currently I remain in treatment at Community Counseling Center, 101 BACON ST. PAWTUCKET R.I. 02860 (401) 722-3560.” The Board did not find any documentation in the applicant’s record that demonstrated he was not responsible for his actions while on active duty. The applicant was held accountable for his misconduct, and properly and equitably discharged. Relief is denied.

 The following is provided for the benefit of the applicant. 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.


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 – COMMISSION OF A SERIOUS OFFENSE.

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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