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NAVY | DRB | 2002_Navy | ND02-00149
Original file (ND02-00149.rtf) Auto-classification: Denied


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

ex-AKAA, USN
Docket No. ND02-00149

Applicant’s Request
This application for discharge review, received 011113, requested that the characterization of service awarded to the Applicant upon his 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.

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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues
Dear Mama/Sir:

My name is A_ D_. H_. I have resided in Goldsboro North Carolina for the past eleven years. Prior to Living in North Carolina I enlisted in the United States Navy in Columbus, Mississippi. Unfortunately I was dishonorably discharged based on disrespect for authority and misconduct in carrying out certain duties. Upon entering the U.S. Navy and through basic training I was excited and applied myself thoroughly. As a result of my dedication I was promoted an extra rank upon coming out of basic training. I cannot pinpoint exactly what went wrong after basic training, except that I became disillusioned with what I thought my role was as a subordinate troop. I feel sure that drinking and drugs contributed negatively to my situation; however, I do take full responsibility for it and fully regret everything that happened while I was on active duty and things that happened after I was discharged. A short while after being discharged I was incarcerated for two and one-half years for drug trafficking, and was placed on probation for another two and one-half years. I successfully completed my probation and have remained out of jail to this date. The only thing since then has been traffic related. Over the past eleven years I have worked as a short order cook at the I 1 7 Truck Stop in Goldsboro; freelance construction worker at Seymour AFB; Meat Chef at K &W Cafeteria; Chef, at the Royal Tea Room: I am currently an independent business owner through the QUIX Star Corporation. I was recently married in August of this year. I have an eight year old son whom I have been re-united with from a previous relationship. I sincerely regret my mistakes and ask for a chance to get my life completely back on track. Would you please, seriously and with compassion, consider my request to change my discharge from the U. S. Navy to honorable. I feel now, being so much more mature, that I can best serve my country with an honorable discharge on my record. I pray that my request will be given every consideration and that it will end with favorable results.

Respectfully, (Signed by the Applicant)




 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: USN               None
         Inactive: USNR (DEP)     870223 - 870322  COG

 Period of Service Under Review :
Date of Enlistment: 870323               Date of Discharge: 890629

 Length of Service (years, months, days):

         Active: 02 02 29
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 62

 Highest Rate: AKAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (1)    Behavior: 3.60 (2)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, SSDR

Days of Unauthorized Absence: 11

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 :

880426:  Retention Warning: Advised of deficiency (You have committed one or more offenses against the UCMJ, or you have been convicted of (an) offense (s) by a civil court), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
880426:  NJP for violation of UCMJ, Article 86: Failed to go to place of duty on 1330, 880415, violation of UCMJ, Article 89: Disrespect toward a Superior Commissioned Officer on 880407, violation of UCMJ, Article 90: Disobeyed a lawful command from a Superior Commissioned Officer on 880407, violation of UCMJ, Article 91: Unlawfully striking a Superior Commissioned Officer on 880407.
         Award: Forfeiture of $335.00 pay per month for 1 month, restriction and extra duty for 10 days. No indication of appeal in the record.

880426:  DAAR indicates marijuana abuse as a result of a random urinalysis, found not dependent, recommended for separation not via VA hospital.

880617:  NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana on 880326.
         Award: Forfeiture of $375.00 pay per month for 2 months, restriction for 60 days (20 days suspended for 6 months). No indication of appeal in the record.

880623:  NJP for violation of UCMJ, Article 86: UA from Restricted Men's Muster at 2130, 880618 and 880622.
         Award: Forfeiture of $100.00 pay per month for 1 month, restriction for 2 days. No indication of appeal in the record.

881201:  NJP for violation of UCMJ, Article 86: UA from unit from 0730, 881105 until 0800, 881108 (3days).
         Award: Forfeiture of $250.00 pay per month for 1 month, restriction and extra duty for 30 days (20 days suspended for 6 months). No indication of appeal in the record.

890201:  That portion of the suspended punishment which was awarded at CO's NJP on 881201 is hereby vacated as follow: Restriction and extra duty for a period of 20 days.

890201:  NJP for violation of UCMJ, Article 86: UA from unit from 0715, 890117 until 0500, 890125 (8days/S).
         Award: Forfeiture of $300.00 pay per month for 1 month, restriction and extra duty for 20 days. No indication of appeal in the record.

890322:  NJP for violation of UCMJ, Article 128: Unlawfully strike AA L___ with his fist on 890314.
         Award: Forfeiture of $250.00 pay per month for 1 month, restriction and extra duty for 10 days. No indication of appeal in the record.

890419:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by three or more punishments under the UCMJ within the current enlistment, misconduct due to a commission of a serious offense and misconduct due to drug abuse as evidenced by wrongful use of marijuana.
890419:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

890426:  DAAR indicates marijuana abuse as a result of a random urinalysis, found not dependent, recommended for separation not via VA hospital.

890523:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by three or more punishments under the UCMJ within the current enlistment, misconduct due to a commission of a serious offense and misconduct due to drug abuse as evidenced by wrongful use of marijuana.

890620:         CNMPC 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 890629 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 attributes his poor performance to alcohol and drug abuse. Substance abuse is not an excuse for poor performance and the Applicant was clearly responsible for his own behavior. The record clearly reflects his willful disregard for the requirement of military discipline and demonstrated 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 on this basis 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. E vidence 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. 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. Naval Military Personnel Manual, (NAVPERS 15560A), Change 7, effective
25 May 89 until 20 Aug 89, 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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