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NAVY | DRB | 2002_Navy | ND02-00091
Original file (ND02-00091.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND02-00091

Applicant’s Request
The application for discharge review, received 011016, requested that the characterization of service on the discharge be changed to general. 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 020619. 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 and narrative reason of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My name is J____ S____. My identification number is -------. I entered the Navy on February 8, 2000. Where I learned basic Seaman Ship training. After the Seaman Ship training I had went to Boot camp. When I completed Boot camp, I went to N.T.C. in Chicago, Illinois for Fireman recruit training. I had then graduated and moved to my duty station where its location is in Norfolk, VA. I was on the U.S.S Deyo DD 989. I was enlisted for 9 months of active duty and throughout those 9 months it has not been easy. However, I made it through. There was a problem I had and it was with my Chain of Command. There were communication problems between my L.P.O., C---- and I. Upon my dismissal, I have tried to rebuild what I lost prior to my enlistment into the navy. I was in the local #1 Plumbing Union. I have tried to get back into the Union without success. My misconduct discharge is holding me back from moving forward in life as well as my career. I am requesting to upgrade my discharge so I can continue to live my life and carry on a career that I enjoy. I would be more than thankful if it was to be made possible. I appreciate your time and concern to look at my case.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Applicant
Copies of DD Form 214 (4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     000128 - 000207  COG

 Period of Service Under Review :
Date of Enlistment: 000208               Date of Discharge: 010327

 Length of Service (years, months, days):

         Active: 00 11 01
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 33

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 79

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

010213:  NAVDRUGLAB [JACKSONVILLE, FL], reported applicant’s urine sample, received 010207, tested positive for [THC].

010214:  NJP for violation of UCMJ, Article 85: Desertion, Spec 1: Did on or about 0615, 001011 without authority with intent to remain away from appointed place of duty, USS DEYO (DD 989) remain absent in Desertion until 1200, 001116; Spec 2: Did on or about 0615, 001121 without authority with intent to remain away from appointed place of duty, USS DEYO (DD 989) remain absent in Desertion until 1020, 010105, violation of UCMJ, Article 86: Absence without leave, did on or about 0615, 001010, without authority failed to go to appointed place of duty, and remain so absent until 0730, 001010, a period of one hour and fifteen minutes, violation of UCMJ, Article 87: (3 Specs), Spec 1: Missed movement on or about 001012, Spec 2: Missed movement on or about 001015; Spec 3: Missed movement on 001128, violation of UCMJ, Article 92: Failure to obey order or regulation, to wit: USS DEYO INFORMATION SYSTEM USERS AGREEMENT, by wrongfully e-mailing unauthorized material to various personnel on board the USS DEYO (DD 989), using a Government controlled computer network, violation of UCMJ, Article 134: Disloyal statements, to wit: Did on or about 010124, with intent to promote disloyal of any members of the armed forces of the United States communicate by e-mail to various personnel on board the USS DEYO (DD 989), using a Government controlled computer network, the following information, to wit: SKATERS HANDBOOK", containing information disloyal to the United States; violation of the UCMJ, Article 134: Soliciting another to commit an offense, on or about 1721, 010124, wrongfully advise various personnel on board the USS DEYO (DD 989) with techniques to avoid work, by e-mailing various personnel on board the USS DEYO (DD-989) with instruction on "How to skate". .
         Award: Forfeiture of 1/2 pay per month for 2 months, restriction to the limits of USS DEYO for 45 days and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

010215:  NAVDRUGLAB [JACKSONVILLE, FL], reported applicant’s urine sample, received 010207, tested positive for [THC].

010217:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance, (THC) on or about 001116.
Award: Forfeiture of $537.75 per month for 2 months, restriction to USS DEYO (DD 989) for 45 days and extra duty for 45 days. No indication of appeal in the record.
010217:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance, (THC) on or about 010113.
Award: Forfeiture of $537.75 per month for 2 months, restriction to the limits of USS DEYO (DD 989) for 45 days and extra duty for 45 days, processing for OTH Discharge. No indication of appeal in the record.
010217:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct commission of a serious offense and misconduct due to drug abuse.
010217:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
010224:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and misconduct commission of serious offense (Desertion).

010228:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 010327 under other than honorable conditions for misconduct due to drug abuse (use) (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 has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. In the applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s discharge was proper and equitable. While he may feel that a communication problem with his chain of command was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. 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. Relief denied.

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. 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 relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. 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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 12 Feb 2001 until Present, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

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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