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NAVY | DRB | 2002_Navy | ND02-01103
Original file (ND02-01103.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND02-01103

Applicant’s Request
The application for discharge review, received 020807, 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. In the acknowledgement letter to the Applicant, he was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area. Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030424. 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. I C_ J D_ please request an up grade I have been asking for years. I also had a fire in my house which I do not have military papers at all. Its been since I was 18 that I joined and I have grown. And I realize what I have to do in life. I've had a good job and whish to keep it to take care of my family.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Statement in Support of Claim from Dept of Veterans Affairs
Request for Military Records

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):

          Inactive: USNR (DEP)     860425 - 860818  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 860819               Date of Discharge: 880422

 Length of Service (years, months, days):

         Active: 01 08 22
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 33

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.13 (3)    Behavior: 3.00 (3)                OTA: 3.26

Military Decorations: None

 Unit/Campaign/Service Awards: BATTLE"E"RIBBON, SSDR, MUC

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

860825   Applicant briefed on Navy policy on drug and alcohol abuse.

870304:  NAVDRUGLAB, NORFOLK, VA reported Applicant’s urine sample, received 870224, tested positive for [cocaine].
870313:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ Article 112a: Wrongful use of cocaine.
         Award: Forfeiture of $329.00 pay per month for 2 months, restriction to NAS NORVA for 45 days, extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
         [Note: Record of NJP extracted from CO’s message dated March 24, 1988 and court Memorandum dated March 19, 1988.]

870331:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order.
         Award: Forfeiture of $200.00 pay per month for 2 months, restriction to NAS NORVA for 30 days. No indication of appeal in the record.

870409:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 92, (1 specification); Article 90, (2 specifications); Article 134,
(1 specification), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
870825:  DAAR indicates cocaine abuse, found dependent by medical officer, recommended for Level II Treatment and retention.

880127:  Retention Warning: Advised of deficiency (Violations of the UCMJ, Article 86, failure to go; Article 113, Drunk on duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880204:  NJP for violation of UCMJ, Article 86 (2 specifications), fail to go to appointed place of duty to wit: Plane Captain School on 880227 and 880128; violation of UCMJ Article 113: Drunk on duty.
         Award: Forfeiture of $200.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction in rate (suspended for 6 months). No indication of appeal in the record.

880302:  Medical Officer's evaluation indicates Applicant is not addicted to THC or Cocaine, is not physically or psychiatrically addicted to drugs or psychologically addicted, does not need a drug detox program.

880302:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct as evidenced by NJP of 870313, 870331 and 880129, commission of a serious offense as evidenced by NJP of 870313 and 880129 and misconduct due to drug abuse as evidenced by NJP of 870313.
880302:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
880318   Applicant requested to waive Administrative Board. Waiver approved.

880324:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct, misconduct due to the commission of a serious offense, and misconduct due to drug abuse. Commanding Officer’s comments (verbatim): [AA C_ J. D_ was awarded NJP on 87MAR12, 87MAR26 and 88JAN29. Misconduct due to pattern of misconduct, misconduct due to commission of a serious offense, and misconduct due to drug abuse are all clearly indicated by type and number of offenses committed. I recommend SNM be separated from naval service and the discharge be characterized as other than honorable.]

880331:  NJP for violation of UCMJ, Article 116: Breach of peace by skylarking.
         Award: Forfeiture of $200.00 pay per month for 1 month, restriction for 45 days. No indication of appeal in the record.

880408:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 880422 under other than honorable conditions for misconduct due to commission of a serious offense (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 NDRB has no authority to upgrade a discharge for the sole purpose of improving employment opportunities as requested by the Applicant. Regulations limit the Board’s review to a consideration of the propriety and equity of a discharge. The Applicant’s discharge was proper and equitable and accurately reflects his service to his country. The Applicant’s summary of service clearly documents the reasons for the Applicant’s other than honorable characterization of service. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a sailor. T he Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls far 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.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until
10 Jan 89, Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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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