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NAVY | DRB | 2001_Navy | ND01-01193
Original file (ND01-01193.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND01-01193

Applicant’s Request
The application for discharge review, received 010920, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020419. 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, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)
1. REASON FOR RESTABLISHMENT OF ACTIVE DUTY. I MADE A MISTAKE BY GETTING MARRIED SO I GOT OUT. ME AND THE WIFE HAVE SEPARATED RELAIZED WHAT AN IDIOT I WAS FOR GETTING OUT SO WHAT I WANT TO DO KNOW IS FINISH MY TIME AND STAY IN FOR THE LONG HALL. I FEEL I WOULD BE GOOD CONTRIBUTION TO THE MYSELF, THE GOVERNMENT, AND MY COUNTRY. BY LEAVING THE NAVY I JEOPARDIZED MY CAREER AND LOST SIGHT OF MY GOALS TOWARDS MY FUTURE IN THE MILITARY. IN CLOSING I FEEL THAT IF REJOIN THE MILITARY I CAN PUT MY LIFE BACK INTO PERSPECTIVE AND FOCUS BACK ON MY GOALS THAT I WANTED TO ACCOMPLISH IN THE NAVY. I AM JUST TRYING TO CORRECT MY MISTAKES AND BE GIVEN A SECOND CHANCE.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Applicant's letter to the Board dtd 20 Mar 2001
Copy of DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     961113 - 971014  COG

 Period of Service Under Review :
Date of Enlistment: 971015               Date of Discharge: 000218

 Length of Service (years, months, days):

         Active: 02 04 04
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 34

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (2)     Behavior: 2.5 (2)                 OTA: 2.75 (5.0 evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

991021:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0720 to 0920 on 8 Oct 99: violation of UCMJ Article 115: Malingering by feigning suicidal ideation.
         Award: 30 days of Correction Custody Unit at Naval Brig Bangor, WA. No indication of appeal in the record.
991021:  Retention Warning: Advised of deficiency (violation of UCMJ, Articles 86 and 115), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
000121:  NJP for violation of UCMJ, Article 86: Absence without leave; violation of UCMJ Article 87: Missing movement; violation of UCMJ Article 112a: Wrongful use, possession, of controlled substance.
         Award: Forfeiture of $563 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
000125:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse.
000125:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
000207:  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. Commanding officer’s comments (verbatim): "SA (Applicant) is being processed for Misconduct-Commission of a serious offense and Misconduct-Drug Abuse. I feel he has no potential for further naval service and recommend discharging him with an Other Than Honorable discharge.

000209:  Commander, Navy Region Northwest, Silverdale, WA, 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 000218 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).

Issue 1. The Board carefully reviewed the applicant’s service record and associated supplemental documentation and determined the Other Than Honorable discharge was properly and equitably assigned. The applicant was found guilty at NJP for violation of UCMJ, Article 112a (wrongful use of controlled substance), Article 86 (unauthorized absence, Article 87 (missing ships movement) and Article 115 (malingering) . The applicant failed to provide sufficient documentation demonstrating that his discharge and characterization was improper or inequitable. Relief is denied.

 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 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION 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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