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NAVY | DRB | 2002_Navy | ND02-00651
Original file (ND02-00651.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND02-00651

Applicant’s Request
The application for discharge review, received 020409, requested that the characterization of service on the 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. Subsequent to the receipt of the application, Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030221. 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 HONORABLE CONDITIONS (GENERAL)/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. (Equity Issue) This former member avers that he was young and immature and this mitigated his misconduct during his naval service.

2. (Equity Issue) This former member further requests that the Board include provisions 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:
Letter from Applicant dated April 29, 2002
Applicant's DD Form 214 (2 copies)
Letter from Applicant dated May 11, 2002
Letter to Applicant dated May 6, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     880831 - 890723  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 890724               Date of Discharge: 900516

 Length of Service (years, months, days):

         Active: 00 09 23
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 22/27

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.90 (2)    Behavior: 1.90 (2)                OTA: 1.90

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

890726:  Applicant briefed on Navy's policy on drug and alcohol abuse.
890821:  Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, ashore off duty. Service directed urinalysis 890724. DAPA found Applicant not dependent and recommended Level I treatment. Commanding Officer recommended retention. Comments: SNM tested positive for THC in accession pipeline urinalysis.

891229:  NJP for violation of UCMJ, Article 92: Violate a general regulation by wrongfully having two ID's in his possession, violation of UCMJ, Article 107 (2 specs): Make a false official statement, violation of UCMJ, Article 116: Breach of peace, violation of UCMJ, Article 117: Wrongful use of provoking words, violation of UCMJ, Article 128: Assault, violation of UCMJ, Article 134 (2 specs): Disorderly conduct and wrongful possession of an unauthorized military ID card.
         Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 25 days. No indication of appeal in the record.
891229:  Retention Warning from USS PUGET SOUND (AD-38): Advised of deficiency (Violate a general regulation by wrongfully having two ID's in your possession, making a false official statement, breach of peace, wrongful use of provoking words, assault and two specifications of conduct and wrongful possession of an unauthorized military ID card.) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900131   Applicant acknowledged having reviewed Enlisted Performance Evaluation for the period 8 NOV 89 to 31 JAN 90 due to derogatory contents.

900209:  NJP for violation of UCMJ, Article 112A (2 specs): Wrongfully use marijuana, (2) Wrongfully possess marijuana.
         Award: Restriction and extra duty for 45 days, reduction to SR. No indication of appeal in the record.
900212:  Medical officer dependency screening: Applicant found not dependent.

 900212:  Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, ashore off duty. Probable cause urinalysis on 900118. DAPA found Applicant amenable and eligible and recommended Level II treatment. Physician found Applicant not dependent and recommended Level II treatment. Commanding Officer recommended separation. Comments: Members shows no potential for future naval service.

900226:  NJP for violation of UCMJ, Article 86 (3 specs): Unauthorized absence from appointed place of duty - restricted men's muster, violation of UCMJ, Article 91: Disrespectful in language towards a first class petty officer. Date of offenses: 11, 17, and 19 February 1990.
         Award: Bread and water for 3 days. No indication of appeal in the record.
900305:  USS PUGET SOUND (AD-38) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse.
900315:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
900315:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct and drug abuse, that the misconduct warranted separation, and by a vote of 2 to 1 recommended discharge with a discharge characterization of under honorable conditions (general).

900322:  NJP for violation of UCMJ, Article 86 (4 specs): Unauthorized absence from appointed place of duty at prescribed times - restricted men's muster. Date of offenses: 4, 8, 16, and 18 March 1990.
         Award: Bread and water for 3 days. No indication of appeal in the record.
900419:  NJP for violation of UCMJ, Article 86: Failing to go at the time prescribed to appointed place of duty, and did remain absent until about 1445, 11 Apr 90.
         Award: Forfeiture of $362 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
900419:  NJP for violation of UCMJ, Article 89: Disrespect towards a superior commissioned officer on 19 Apr 90.
         Award: Confinement on bread and water for 3 days. No indication of appeal in the record.
900425:  NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 900406, tested positive for cocaine/THC.

900503:  Commanding Officer, USS PUGET SOUND (AD-38) recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse. Commanding Officer’s comments (verbatim): [Seaman Recruit B_ (Applicant) has no potential for naval service. He has demonstrated blatant disregard for the Navy’s policy and command policy on drug abuse, through use and possession of marijuana while on board, and has repeatedly shown his inability to conform to Navy requirements.

         During the administrative board, Seaman Recruit B_ (Applicant) admitted to use of marijuana prior to entering the Navy, however, the record of military processing into the Navy did not indicate prior use. Seaman Recruit B_ (Applicant) was not processed for separation for fraudulent enlistment based on the determination that it would not be possible to support such an allegation. During consideration of processing for fraudulent enlistment, B_ (Applicant) stated, “My recruiter told me to put, no.” Therefore, processing for fraudulent enlistment is not considered appropriate.

         Seaman Recruit B_’s (Applicant’s) misconduct continues to be disruptive aboard this vessel. On 19 April 1990, SR B_ (Applicant) was awarded NJP for failing to report to his appointed place of duty (enclosure (4) germane). At the completion of Mast, when SR B_ (Applicant) was ordered to hand salute, he was disrespectful to the Commanding Officer and a subsequent mast was held (enclosure (5) germane). SR B_’s (Applicant’s) attitude and behavior towards his superiors is disrespectful at all times. I strongly recommend expeditious processing of his administrative separation with a characterization of service Under other Than Honorable conditions.]

900509:  CNMPC directed the Applicant's discharge with a discharge characterization of under honorable conditions (general) by reason of misconduct due to a pattern of misconduct.

900516   Applicant acknowledged having reviewed Enlisted Performance Evaluation for the period 1 FEB 90 to 16 MAY 90 due to derogatory contents.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 900516 with a discharge characterization of under honorable conditions (general) 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 Board found the Applicants discharge proper and equitable. The Applicant’s discharge for a Pattern of Misconduct is appropriate. Drug abuse (use) alone warranted processing for separation, normally under other than honorable conditions. The Applicant’s summary of service is marred by award of non-judicial punishment (NJP) on six occasions. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls short of that required for a fully honorable characterization of service. Although the Applicant claims youth and immaturity as the reasons for his misconduct, this does not provide a basis on which to mitigate his misconduct. 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. An upgrade to honorable would be inappropriate. Relief denied.

 Issue 2: 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. Furthermore, t here 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 credible evidence that the Applicant is living a drug free life style, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time the Applicant has not provided sufficient documentation of good character and conduct to mitigate his misconduct while on active duty. 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.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 “ afls14.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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