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NAVY | DRB | 2002_Navy | ND02-00322
Original file (ND02-00322.rtf) Auto-classification: Denied


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

ex-AMSAR, USN
Docket No. ND02-00322

Applicant’s Request
The application for discharge review, received 020128, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Denver, CO. 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, all hearings are held in the Washington, D.C. area. The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020829. 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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. I request that my discharge be changed from OTH to Honorable. I base my request this on the fact that when I enlisted I was 17 years old and never been away from home. I was never in much trouble in the first two years, except for being late for not going to my appointed duty place. I was promised a military occupational skill and when I went in my MOS was changed to an aviation structural mechanic. I was disappointed with this MOS and felt that I did not have a choice but to stay in. I also felt bitter because the job that eventually was given to me I hardy ever worked at, which made me angry. I became bitter but I worked at my job. I wanted to leave the Navy because I was not working on my MOS. I got married to a lady at the age of 19. The lady that I married did not like the Navy and strongly influenced me to commit acts that would get me discharged. I believed when I got married that it was going to be for life and all I wanted was to make her happy. My wife used marijuana and she convinced me to do so. I did it one time and I did not like it. In fact I was the one that went back and told the people that was conducting UAS that I had smoked pot. From what I understand my urine test came back negative, but for the fact that I had told someone that I had smoked pot, that was enough to have me discharged. I request that the board consider my request to have my discharge upgraded due to the fact that I am a decent man. I am trying to find suitable employment with the Department of Corrections and they will not allow me to be employed with an OTH discharge. I would also like to state that I do not partake in drugs and have not been involved in any breaking of the law, other that a traffic violation. Thank you for considering my request.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of Record of Trial (9pgs)
Copy of Commanding Officer Recommendation (2pgs)
Copy of Notification of Separation (2pgs)
Copy of Statement of Awareness
Copy of Enlistment Performance Record


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     941123 - 951121  COG

 Period of Service Under Review :
Date of Enlistment: 951122               Date of Discharge: 971017

 Length of Service (years, months, days):

         Active: 01 10 26
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 84

 Highest Rate: AMSAR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 64

*No Marks Found in the service record.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

960822:  Civil conviction for possession of alcohol under the age of 21.
                  Sentence: Pled no contest, adjudication of guilt withheld, $150.00 fine.

 960828:  NJP for violation of UCMJ, Article 86: On or about 960822, did absence himself from his organization and did remain absent until on or about 960823.
         Award: Forfeiture of 2 days pay ($58.32) for 1 month, restriction and extra duty for 5 days. No indication of appeal in the record.
960912:  NJP for violation of UCMJ, Article 86: Absent from his organization from 0700, 960903 and did remain absent until 0930, 960903.
Award: Forfeiture of $204.12 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
970826:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86: (8 Specifications), Unauthorized absence. Charge II: violation of the UCMJ, Article 87: (2 Specifications), Missing Ship's Movement. Charge III: violation of the UCMJ, Article 92: Violation of a lawful general regulation. Charge IV: violation of the UCMJ, Article 112a: Wrongful use of Methamphetamine.
         Finding: to Charge I and the specification thereunder, guilty. To Charge II and the specification thereunder, guilty. To Charge III and the specification thereunder, guilty. To Charge IV and the specification thereunder, guilty.
         Sentence: Confinement for 30 days, forfeiture of $400.00 pay per month for 1 month, reduced to E-1.
         CA action 970911: Approved finding and sentence.
970911:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by a summary court-martial conviction on 970826 for violation of the UCMJ, Article 87, missing ship's movement through design on two occasions and Article 92, violation of a lawful general regulation, and misconduct due to drug abuse as evidenced by a summary court martial conviction on 970826 for violation of the UCMJ, Article 112a, wrongful use of methamphetamine.
970911:          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.
970922:  Commanding Officer 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 (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 971017 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. 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 a summary court-martial for the commission of a serious offense and illegal drug use. 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 his youth and dissatisfaction with his job assignment were factors that contributed to his actions, the record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable. An upgrade to honorable would be inappropriate. Relief denied.

 The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. 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. Relief not warranted.

The applicant 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. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL 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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