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NAVY | DRB | 2002_Navy | ND02-00775
Original file (ND02-00775.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND02-00775

Applicant’s Request
The application for discharge review, received 020510, 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030214. 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 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.       I understand that you denied my request and I expected that. I know that my offenses of, underage drinking, UA 4 days, possession of a false pass, breaking restriction, and using cocaine, was all a mistake. I believe you (the Navy) is doing the right thing I have excuses. Over the past few years I learn a lot about myself. I was before the Navy and during the Navy still very stupid I was just a good athlete and could get away with everything. After I was discharge I couldn't even go home to my parents so I moved to California to go to college. I'm learning a life lesson write now working 40+ hours a week while attending college. I'm turning myself around. Doing my best and working hard. I always have the Navy in my head. I want to reenlist a go through the SEAL program I believe I can make it and make the Navy proud. I have grown up now No more mistake No more accident No little kid things. Now there is only (Applicant) the man.

Applicant marked the box "I PREVIOUSLY SUBMITTED AN APPLICATION ON (Enter date) 20020327 AND AM COMPLETING THIS FORM IN ORDER TO SUBMIT ADDITIONAL ISSUES. There is a letter, in the 2001 alpha file, dated October 2001 returning an incomplete application. No other reference or application was found.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Student's schedule, dated March 28, 2002
College transcript from College of Oceaneering, dated December 19, 2001
Unofficial Student Permanent Record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     991216 - 000618  ELS
                  : USNR (DEP)     000602 - 000618  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 000619               Date of Discharge: 001214

 Length of Service (years, months, days):

         Active: 00 05 26
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 51

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 3

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

000928:  NJP for violation of UCMJ, Article 92 (2 specs): (1) Wrongfully consuming alcoholic beverage while under the age of twenty-one, (2) Failed to obey the same by wrongfully consuming alcohol in Phase I liberty.
         Award: Forfeiture of $263 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
000928:  Retention Warning: Advised of deficiency (Underage drinking/failure to obey a lawful order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 001018:  ARD 5N: Impression: Applicant appears to meet 1 of 4 criteria for alcohol abuse.

 001116:  NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence 1645, 001006 to 1940, 001006, (2) Unauthorized absence 1000, 001012 to 0800, 001016 (3 days), violation of UCMJ, Article 92: Underage drinking on 001006, violation of UCMJ, Article 134 (2 specs): (1) False pass on 001006, (2) Breaking restriction on 001006, violation of UCMJ, Article 112A: Wrongfully use of a controlled substance between 001012 and 001016, to wit: cocaine.
         Award: Forfeiture of $503 per month for 2 months, restriction and extra duty for 45 days, reduction to SR. No indication of appeal in the record.
001117:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.
001117:  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

001124:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

001128:  Commander, Naval Training Center, Great Lakes 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 001214 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 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 two 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 an honorable characterization of 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. An upgrade to general (under honorable conditions) would be inappropriate. Relief denied.

 The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Therefore, the Board cannot grant relief on this issue.

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. 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 15560C), Change 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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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