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NAVY | DRB | 2002_Navy | ND02-00337
Original file (ND02-00337.rtf) Auto-classification: Denied


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

ex-SHSA, USNR
Docket No. ND02-00337

Applicant’s Request
The application for discharge review, received 020129, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. 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 020912. 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. I strongly feel my discharge was inequitable based solely on one isolated incident (positive urinalysis) in 45 months of dedicated service with no other adverse actions included that would have hindered my continued service. I honestly and strongly feel based on my record of service I should have received a general under honorable condition. Please consider my case in review thank you.

 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)     None

 Period of Service Under Review :
Date of Enlistment: 840430               Date of Discharge: 880226

 Length of Service (years, months, days):

         Active: 03 08 05
         Inactive: 00 00 23

 Age at Entry: 24                          Years Contracted: 6 (12 month extension)

 Education Level: 12                        AFQT: 40

 Highest Rate: SH3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.44 (5)    Behavior: 3.30 (6)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

 Days of Unauthorized Absence: 31

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 :

840523:  Ordered to active duty for 36 months under the Active Mariner program.

 860530:  Retention Warning from [USS MOBILE (LKA-115)]: Advised of deficiency (Misconduct as evidenced by unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

860530:  NJP for violation of UCMJ, Article 86: Unauthorized absence from unit from 0730, 860525 until 1300, 860525 (5hrs, 30mins), violation of UCMJ Article 92: Disobeying a lawful order from a superior petty officer.
         Award: Forfeiture of $100.00 pay per month for 1 month, restriction for 15 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.

871026:  Retention Warning from USS MOUNT HOOD (AE-29): Advised of deficiency (Developing a pattern of arriving at work late, as evidenced by being late for quarters by ten to twenty minutes on Monday and Tuesday, 19 and 20 October 1987, and twenty minutes late on Thursday, 22 October 1987), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

871105:  NJP for violation of UCMJ, Article 86: Absented himself from his unit, violation of UCMJ Article 92: Disobeying a lawful order.
         Award: Forfeiture of $420.00 pay per month for 1 month, restriction and extra duty for 15 days, reduction to E-3 (suspended for 6 months), and oral admonition. No indication of appeal in the record.

871116:  Retention Warning from USS MOUNT HOOD (AE-29): Advised of deficiency (Willful disobedience of a lawful order and absence from appointed place of duty. At 1230 on 871116, the Applicant was directed by SH1 U_, his LPO, to clean a ladder in preparation for a VIP visit. He did not clean the ladder and could not be found to be reminded. The task was given to another Ship's Serviceman. Meanwhile, he was not at his appointed workstation (Ship's Laundry) and therefore could not be found to assist in receiving stores. When he was found at 1430 by SH1 W_, he told him, "I was tired so I went to sleep in the Crew's Lounge,” notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880122:  Punishment of reduction in rate to E-3 suspended at CO's NJP of 871105 vacated this date due to continued misconduct.

880122:  NJP for violation of UCMJ, Article 86: (2 Specs), Absented himself from his unit from 0715, 871211 to 0715, 870113 and from 871216 to 880115, violation of UCMJ Article 92: Dereliction of duty, violation of UCMJ Article 112a: Wrongful use of a controlled substance.
Award: Forfeiture of $376.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2, oral admonition. No indication of appeal in the record.
880126:  USS MOUNT HOOD (AE-29) 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 nonjudicial punishments under the UCMJ within members current enlistment, the latest offense having occurred while assigned to this command, and for drug abuse as evidenced by Commanding Officer's non-judicial punishment on 880122.

880126:          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.
880210:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by three punishments under UCMJ within the member's current enlistment, the latest offense having occurred while assigned to this command, and for drug abuse as evidenced by Commanding Officer's non-judicial punishment on 880122.

880216:  CNMPC 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 880226 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: The Applicant contends his discharge was inequitable because it was based on one isolated incident in 45 months of dedicated service with no other adverse actions. Contrary to the Applicant's claims, his service record reveals the imposition of nonjudicial punishment on three occasions (May 1986, November 1987 and January 1988). The January 1988 imposition of nonjudicial punishment included a violation of Article 112a, UCMJ, for use of a controlled substance.

The Applicant submitted to a urinalysis, which resulted in a positive finding for use of a controlled substance. Drug abuse warranted processing for separation, normally under other than honorable conditions. The Applicant was processed according to the rules and regulations existing at the time of his discharge. The discharge was proper and equitable. Relief is denied.

Issue 2: The Board disagrees with the Applicant's contention that his service warrants an upgrade to the characterization of his discharge to general under honorable conditions. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. Under other than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he Applicant’s service was marred by multiple violations of the Uniform Code of Military Justice (UCMJ) including the use of a controlled substance. The Applicant’s conduct, which forms the primary basis for determining the character of his service reflects his willful use of a controlled substance and multiple violations of the UCMJ. His conduct failed to meet the requirements of his contract with the U.S. Navy and falls short of that required for an upgrade of his characterization of service. Relief is not warranted.

The following is provided for the benefit of the Applicant. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. 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. Relief denied.

 The Applicant is reminded that the period of eligibility for a personal appearance hearing is 15 years from the date of discharge. The application package must be submitted to the NDRB prior to the expiration of the 15 year period. 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.



Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A, effective 870615 - 890110), Article 3630600, SEPARATION OF ENLISTED MEMBERS 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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