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NAVY | DRB | 2002_Navy | ND02-01112
Original file (ND02-01112.rtf) Auto-classification: Denied


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

ex-OSSR, USN
Docket No. ND02-01112

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 personal appearance discharge review before a traveling panel closest to Toms River, New Jersey. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

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. Not and excuse, but young and ignorant at time of discharge. I am now 31 years old, bought my own home, work 6 days a week and have a beautiful wife.

2. If I could turn back time I would definitely do it differently. I have changed my life around 360 degree. I appreciate the consideration.

3. Would like to pursue career in law enforcement as well. Scored high on civil service exam but may not get hired due to my ignorance 12 years ago.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214 (2 copies)
Forty-seven pages from Applicant's medical record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     880329 - 890228  ELS
 USNR (DEP)      890309 - 890313  COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 890314               Date of Discharge: 900710

 Length of Service (years, months, days):

         Active: 01 03 27
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 62/53

 Highest Rate: OX3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 0.00 (0)    Behavior: 0.00 (0)                OTA : 0.00

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 60

 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 :

890317:  Applicant briefed on Navy's policy of drug and alcohol abuse.
890831:  NJP for violation of UCMJ, Article 92: Having knowledge of a lawful order on 2250, 890823, to wit: consuming alcohol under age.
         Award: Restriction and extra duty for 7 days. No indication of appeal in the record.
890831:  Retention Warning: Advised of deficiency ( (Disciplinary infractions or misconduct with military or civil authorities. VUCMJ Art. 92 .) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900122:  Retention Warning: Advised of deficiency (Substance abuse.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
900127:  NJP for violation of UCMJ, Article 111: Drunk or reckless driving on 900115.
         Award: Forfeiture of $406 per month for 1 month, restriction and extra duty for 45 days. No indication of appeal in the record.
900127:  Retention Warning: Advised of deficiency (Developing a pattern of misconduct as evidenced by minor disciplinary infractions.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900127:  Administrative Remarks: While underage, you illegally consumed alcoholic beverages to such an extent that you were involved in a motor vehicle accident while having a blood alcohol level of .11. You are hereby directed to abstain from the ingestion of any alcoholic beverage until you are of legal drinking age. Failure to obey this order will result in disciplinary action under the UCMJ for violation of a direct order from a superior commissioned officer.

900129:  Medical Department: Impression: Severe depression with ETOH dependency.

900203:  Mental Health Department: Impression: Alcohol dependence. Recommend Level III treatment as soon as it can be arranged.

920204:  Applicant returned with psychiatric consult. Diag: alcohol dependency. Rec: Level III care. Fit for duty.

900330:  NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 900321, tested positive for cocaine.

900421:  Drug and Alcohol Abuse Report: Cocaine abuse, 1-3 time a month, ashore off duty. Consentual urinalysis 900321. Physician found Applicant dependent. Commanding Officer recommended retention until EAOS and Level I treatment including NADSAP. Comments: Work habits and performance considered average for personnel of his age and rate. Potential for continued naval service is good.

900503:  Applicant declared a deserter.

900606:  Applicant found to be alcohol dependent. Applicant declined VA treatment.

900606:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86.
         Specification: Unauthorized absence for 61 days.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $200.00, CHL for 30 days, reduced to OSSR.
         CA action 900606: Sentence approved and ordered executed.

900606:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to the commission of a serious offense, and misconduct due to drug abuse.
900606:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. Applicant did not object to separation.

900611:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to the commission of a serious offense, and misconduct due to drug abuse.

900702:  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 900710 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).

 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 he may feel that his youth and ignorance were contributing factors to his actions, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service. His service record is marred by award of non-judicial punishment (NJP) on two separate occasions for alcohol related offenses and a summary court-martial thus substantiating the misconduct . It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges. In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. An upgrade to general (under honorable) conditions would be inappropriate. Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. Regulations limit the Board’s 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 proper and equitable. Relief denied.

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, 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.

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 – 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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