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NAVY | DRB | 2002_Navy | ND02-00081
Original file (ND02-00081.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND02-00081

Applicant’s Request
The application for discharge review, received 011011, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance hearing discharge review before a traveling panel. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, and that all hearings are held in the Washington, DC area. The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing. Subsequent to the application for review the applicant obtained the American Legion as his representative.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020715. 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 - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. (Equity Issue) This former member now regrets in-service misconduct and opines that it is unfair for him to continue to suffer the stigma associated with his discharge.

2. (Equity Issue) This former member further requests that the Board include provision of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letters from Applicant (2)

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: 901127               Date of Discharge: 920228

 Length of Service (years, months, days):

         Active: 01 03 01
         Inactive: None

 Age at Entry: 21                          Years Contracted: NFIR

 Education Level: 12                        AFQT: NMA

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (1)    Behavior: 2.80 (1)                OTA: 2.80

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 1

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

910606:  NJP for violation of UCMJ, Article 86: UA from unit from on or about 0700, 910604 to on or about 0720, 910605, violation of UCMJ Article 92: failure to obey lawful orders of AOCS B_ to muster by phone on or about 910502.
         Award: Forfeiture of $376.00 pay per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.

910607:  Retention Warning from [USS CONSTELLATION (CV-64)]: Advised of deficiency (Absent from this command from 0700, 910604 to 0720, 910605 and disobeyed the lawful order of AOCS B_ to muster by phone on 910502), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910821:  NJP for violation of UCMJ, Article 86: (3 Specifications); UA from unit from on or about 2330, 910812 to on or about 0001, 910813; from on or about 1455, 910809 to on or about 0715, 910812 and from on or about 0700, 910814 to on or about 1145, 910814, violation of UCMJ Article 92: dereliction of duty (sleeping on watch) on or about 910803, violation of UCMJ Article 107: Falsified Foc'sle Security Watch Check List on or about 910813.
         Award: Correctional Custody Unit for 30 days. No indication of appeal in the record.

910916:  Mitigation of NJP: The period from 910913 to 910920 is hereby mitigated to restriction.

920130:  NJP for violation of UCMJ, Article 112a: (2 Specifications), wrongful use and possession of marijuana on or about 920121.
         Award: Forfeiture of $392.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

920207:  Senior Medical Officer of USS CONSTELLATION (CV-645) evaluated applicant and found him not dependent on marijuana.

920207:  USS CONSTELLATION (CV-64) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by three punishments under the UCMJ each within the current enlistment: 910606, 910821 and 920130; misconduct due to commission of serious military offenses as evidenced by dereliction of duty by sleeping while on watch on or about 910803, falsified a security watch checklist on or about 910813 and failure to obey a lawful order issued by Senior Chief Petty Officer on or about 910502, and misconduct due to drug abuse as evidenced by wrongful use and possession of marijuana on or about 920121.
920207:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
920218:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, commission of serious military offense and drug abuse.

920226:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920228 under other than honorable conditions for misconduct due to a pattern of misconduct (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. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. T he applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on three occasions and adverse counseling entries on another occasion. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. While he may feel that he was never given a chance, the record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. The applicant implied in his letters to the Board that he only used illegal drugs once, but in his military record he admitted to using marijuana three or four times a week for the eight and one half months prior to 920123. An upgrade would be inappropriate. Relief denied.

Issue 2. The applicant’s discharge characterization accurately reflects his service to his country. 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. 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 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 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT.

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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