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NAVY | DRB | 2002_Navy | ND02-00022
Original file (ND02-00022.rtf) Auto-classification: Denied


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

ex-RMSR, USNR
Docket No. ND02-00022

Applicant’s Request
The application for discharge review, received 010924, 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 list any representative on the DD Form 293. Subsequent to the application for review the applicant requested representation from either American Legion or Veterans of Foreign Wars. The applicant's representative is Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020604. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My discharge was inequitable because it was based on one isolated incident in 41 months of service with no other adverse action.

2. (VFW's Issue) Applicant indicated above requested that Veteran of Foreign Wars act as counsel concerning his application. His record were reviewed on March 28, 2002 and the following comments are hereby submitted. The applicant is requesting CLEMENCY as directed by SECNAVINST 5420.174C par 1.12. The clemency discharge was created by the President on September 16, 1974, in his Proclamation 4313, "Announcing a Program for the Return of Vietnam Era Draft Evaders and Military Deserters." Upon issuance to individuals who have an undesirable discharge or punitive discharge, a clemency discharge serves as written testimonial to the fact that the individual has satisfied the requirements of the President's program, and has fully earned his/her return to the mainstream of American society in accordance with that program. We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for CLEMENCY.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Applicant (2pgs)
Transcript from ECPI College of Technology-Greensboro
Employment Reference Letter (2)
Copy of Certificate of Appreciation from YMCA
Letter from Applicant (2pgs)
Copy of Letter from NDRB for incomplete DD 293
Copy of DD Form 293 (2pgs)
Letter of Recommendation from ECPI Instructor
Letter from Applicant about Criminal Record Check
Copy of Criminal Record Check (2pgs)



PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     None

 Period of Service Under Review :
Date of Enlistment: 900227               Date of Discharge: 931202

 Length of Service (years, months, days):

         Active: 03 01 24
         Inactive: 00 06 15

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 33

 Highest Rate: RMSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.90 (2)    Behavior: 3.80 (3)                OTA: 3.90

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, SASM, NDSM, NAVY"E"RIBBON, JMUA, AFEM

Days of Unauthorized Absence: 28

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

900912:  Ordered to active duty for 36 months under the Active Mariner program.

 930804:  NJP for violation of UCMJ, Article 86: Unauthorized absence 930701-930728 [28days], violation of UCMJ Article 87: Missing Ship's Movement.
         Award: Forfeiture of $456.60 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 20 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.
930806:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 86, Unauthorized absence and Article 87, Missing Ship's Movement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
931104:  NAVDRUGLAB [NORFOLK, VA], reported applicant’s urine sample, received 931027, tested positive for [THC/Cocaine].
931115:  Medical Officer's evaluation found applicant not drug dependent.         

931118:  NJP for violation of UCMJ, Article 112a: Wrongfully use marijuana and cocaine.
         Award: Forfeiture of $407.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. Suspension of reduction in rate and forfeiture of 1/2 months pay for 1 month awarded at Captain's Mast held on 930804, was vacated and punishment ordered executed. No indication of appeal in the record.

931118:  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.
931118:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
931119:  Commander, Second Fleet 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.

931124:  DAAR indicates cocaine abuse as a result of a random urinalysis, found not dependent, not eligible, recommended for separation not via VA Hospital.

931129:  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 931202 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 states that the discharge was inequitable because it was based on one isolated incident in 41 months of service with no other adverse action. The record shows the applicant was found guilty at NJP on two separate occasions for violation of Article 87 (missing ship’s movement), and Article 112a (wrongful use of a controlled substance - marijuana and cocaine). The Board found the Other Than Honorable discharge accurately describes the applicant’s service to his country. The discharge was proper and equitable. Relief is denied.

Issue 2 states: “The applicant is requesting CLEMENCY as directed by SECNAVINST 5420.174C par 1.12. The clemency discharge was created by the President on September 16, 1974, in his Proclamation 4313, "Announcing a Program for the Return of Vietnam Era Draft Evaders and Military Deserters." The Clemency Discharge, which is no longer offered, was issued to individuals who had an undesirable discharge or punitive discharge, and served as written testimonial to the fact that the individual had satisfied the requirements of the President's program, and had fully earned his/her return to the mainstream of American society in accordance with that program.” Additionally, the NDRB found clemency defined in SECNAVINST 5420.174C par 1.12 is inappropriate because the applicant did not serve during the Vietnam Era and was never declared a deserter. The applicant was discharged for commission of a serious offense, which included missing ship’s movement and drug abuse. The discharge was proper and equitable. Relief is denied.

 The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law or regulation which allows for an unfavorable discharge to be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have occurred during the period of enlistment in question. Nom such error occurred in this case. Outstanding post-service conduct, 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, may be considered by the NDRB. The applicant failed to provide documentary evidence to demonstrate that he is a person of good character and conduct. Therefore, relief is not warranted.
The applicant is eligible for a personal appearance hearing provided an application is received at the NDRB within 15 years from the date of discharge. Representation at 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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