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NAVY | DRB | 2002_Navy | ND02-00691
Original file (ND02-00691.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND02-00691

Applicant’s Request
The application for discharge review, received 020417, 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 Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030116. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I was discharged for pattern of misconduct. I was trying to go home to save my parents divorce. I realize now that I couldn't do anything. Since I lost my naval career. I have gone down hill. I have been in and out of the court system since 1997. I just finally completed a treatment facility for my addiction. I have been an addict since day one. I feel that is why I did what I did. I was happy being in the service, and I will do anything to be able to go back so I can give my family things. I am basically trying to obtain some benefits for my family. My wife and I are struggling without medical insurance, money (finances are real low). I know that by me getting in will help, because I will move her with me. I am not just doing this for myself but for my family. I also want to gain the respect I had lost. I would gratefully like to earn a chance to serve my country. Please help me if you can.

2. (VFW Issue) We support the Applicant contention that his discharge be upgraded. We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrade to General Under Honorable Conditions.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant dated April 3, 2002
Arrest Record from County Sheriff's Office
Preliminary Evaluation Report
Copy of Certificate of Completion (CPT/CD-9 Coding Course)
Copy of Recognition Award (Electrocardiograph Technician)
Copy of Computer Achievement Certificate
Copy of Certificate of Award (Volunteer Service)
Letter of Verification from Applicant's Probation Officer
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     940624 - 950619  COG
         Active: USN               None

 Period of Service Under Review :
Date of Enlistment: 950620               Date of Discharge: 961119

 Length of Service (years, months, days):

         Active: 01 03 12
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 36

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 31

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

951011:  NJP for violation of UCMJ, Article 134: Did, at RTC, GLKS, IL., on or about 950924, unlawfully enter the A&B drawers of SR C_ W. H_, violation of UCMJ Article 92: Dereliction of duty while on compartment watch DIV 393, Ship 14, RTC, GLKS, on or about 950924, by willfully leaving his post and wrongfully opened an A&B drawer not his own.
         Award: Forfeiture of $478.80 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

951218:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86.
         Specification: On or about 951112, without authority, absent himself from his organization to wit: RTC, GLKS, IL, and did remain so absent until on or about 951205 (23 days/S).
         Finding: to Charge I and the specification there under, guilty.
         Sentence: Confinement to Navy Brig for 23 days.
         CA action 951218: Sentence approved and ordered.
960106:  Released from confinement returned to full duty.
960108:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 86), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960830:  DAAR indicates marijuana abuse, found not dependent, not eligible, recommended for separation not via VA Hospital.
961004:  NJP for violation of UCMJ, Article 86 (2 Specifications), Specification 1: Did on or about 0600, 960729, without authority, absent himself from his organization, to wit: SSC, GLKS, IL, and did remain so absent until on or about 0735, 960806 (8 days/S); Specification 2: Did on or about 960824, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Galley Duty; violation of UCMJ Article 112a: Did, somewhere in the continental United States, between 960706 and 960806, wrongful use of a controlled substance, to wit: marijuana; violation of UCMJ Article 123: (4 Specification), Forgery, with intent to defraud, falsely make in its entirely the signature of A_ R. B_ on certain checks in the amount of $70.00 on 960713, $150.00 on 960714, and 2 checks for $150.00 on 960716.
         Award: Forfeiture of $437.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
961004:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense and misconduct due to drug abuse as evidenced by all punishments under the UCMJ in your current enlistment.
961004:  Applicant advised of 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

961018:  Commanding Officer recommended 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.

961030:  Commander, Naval Training Center, Great Lakes authorized 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 961119 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: 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. While the Applicant may feel his parent’s divorce was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unsuited 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 denied.

Issue 2: 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 and certification of non-involvement with civil authorities are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The post service documentation provided by the Applicant includes his post service arrest record dated March 22, 2002. From July 1997 to September 2001, the Applicant was arrested nine times to include passing bad checks; forgery; theft; probation violation; and the misuse of credit cards. Relief not warranted.

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 15560C, Change 14, effective 03 Oct 96 until 11 Dec 97), 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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