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NAVY | DRB | 2002_Navy | ND02-00265
Original file (ND02-00265.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND02-00265

Applicant’s Request
The application for discharge review, received 020114, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The Applicant requested a documentary record discharge review. The Applicant listed American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021008. 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 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. (Equity Issue) This former member proffers that personal family problems contributed to and sufficiently extenuated his misconduct of record to warrant upgrade of his characterization of service.

2. (Equity Issue) This former member further requests that 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:
Copy of County Jail Release Documents (7 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     990127 - 990128  COG

 Period of Service Under Review :
Date of Enlistment: 990128               Date of Discharge: 000415

 Length of Service (years, months, days):

         Active: 01 02 18 (Doesn't exclude lost time)
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 41

 Highest Rate: AA

 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: 73

 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 :

990514:  Retention Warning: Advised of deficiency (Article 92-wrongfully consuming an alcoholic beverage while under the age of 21), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990514:  NJP for violation of UCMJ, Article 92: Underage drinking.
Award: Forfeiture of $479.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
990922:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 990723 to 990821, violation of UCMJ, Article 87: Missing movement on 990802
 Award: Correctional Custody for 30 days. No indication of appeal in the record.
991208:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 991108 to 991116 (8 days).
Award: Confinement on Bread & Water for 3 days, forfeiture of $450.00 pay per month for 1 months. No indication of appeal in the record.
000111:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense and misconduct.

000307:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (2 Specifications), UA from unit from 000113 until 000218, and fail to go to appointed place of duty, to wit: Waist Catapult Work Center on 000228, violation of the UCMJ, Article 91: Disrespect in language towards a Petty Officer on 000229.
         Finding: to Charge I, guilty.
         Sentence: Confinement for 30 days, forfeiture of $750.00, reduced to E-1.
         CA action 000310: Approved the findings of guilty and ordered the sentence executed.

000317:  NJP for violation of UCMJ, Article 112a: Wrongful use of cocaine on or about 000218.
Award: Forfeiture of $502.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
000321:  Applicant reprocessed for discharge action and was notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense and misconduct due to drug abuse.
000321:  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.
000324:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by his punishments under the UCMJ in his current enlistment and by reason of misconduct due to commission of a serious offense as evidenced by his Commanding Officer's NJP held on 990922, for violation of the UCMJ, Article 87, missing ship’s movement through design on 990802; and his Summary Court-Martial held on 000307, for violation of the UCMJ, Article 86, unauthorized absence from unit from 000113 until 000218; and Article 91, disrespect in language towards a petty officer on 000229; and by reason of drug abuse as evidenced by his Commanding Officer's NJP held on 000317, for violation of the UCMJ, Article 112 (a), wrongful use of cocaine on 000218.
000331:  Released from confinement and returned to full duty.
000405:  Commander, Cruiser Destroyer Group TWO authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

000808:  CNMPC message 081827 AUG 00 indicates Applicant did not qualify for discharge as processed for misconduct due to a pattern of misconduct and misconduct due to commission of serious offense, as notified on 000111. Applicant was discharged on 000415 for misconduct due to drug abuse, as reprocessed on 000321.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 000415 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 Applicant was discharged for misconduct due to drug abuse. The Applicant used cocaine, drug abuse (use) warranted processing for separation under other than honorable conditions. In addition, the Applicant’s service record is marred by award of non-judicial punishment on four occasions as well as a Summary Court-Martial. Furthermore, according to the official record, the Applicant had a total of 73 days of unauthorized absence during his eleven month enlistment. 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’s discharge was proper and equitable and accurately reflects his service to his country. Relief denied.

Issue 2: 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, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and creditable evidence that he is not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based upon post-service conduct. The Applicant did not provide any documentation to warrant an upgrade to his discharge. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is recommended, but not required. Relief denied.


Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 - 11 Feb 2001, 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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