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NAVY | DRB | 2002_Navy | ND02-01189
Original file (ND02-01189.rtf) Auto-classification: Denied


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

ex-SR, USNR
Docket No. ND02-01189

Applicant’s Request
The application for discharge review, received 020814, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030515. 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, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

Prior to the documentary discharge review, the Applicant introduced no issues, as Block 8 on the DD Form 293 is blank.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 980910               Date of Discharge: 000908

 Length of Service (years, months, days):

         Active: 01 11 29 (Does not exclude lost time and confinement time.)
         Inactive: 00 00 09

 Age at Entry: 26                          Years Contracted: 8

 Education Level: 12                        AFQT: 35

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*        Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NATO Medal, AFEM, SSDR

 Days of Unauthorized Absence: 92

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :
990106   Applicant reports to USS ENTERPRISE (CVN 65).

990412:  NJP for violation of UCMJ, Article 89: Disrespect toward a commissioned officer 99APR05; violation of UCMJ, Article 90: Willfully disobeyed a commissioned officer 99APR05.
Award: Forfeiture of $150 per month for 1 month (suspended for 6 months), restriction and extra duty for 15 days. No indication of appeal in the record.

 990419:  Retention Warning: Advised of deficiency (violation UCMJ, ART. 89 - disrespect toward a commissioned officer and UCMJ, ART. 90 - willfully disobeyed a commissioned officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

991202:  Unauthorized absence from USS ENTERPRISE (CVN 65), Newport News, VA
991207:  Surrendered onboard USS ENTERPRISE (CV 65) (5 days).

 991213:  Unauthorized absence from USS ENTERPRISE (CVN 65), Newport News, VA
000106:  Surrendered onboard USS ENTERPRISE (CV 65) (23 days).

000112:  Summary Court-Martial
         Violation of UCMJ, Article 86 (2 Specs): Unauthorized absence from until 99DEC02 to 99DEC07; 99DEC19 to 00JAN-06
 Violation of UCMJ, Article 91 (2 Specs): Disrespect toward AT2 R_ 99NOV16; willfully disobey a lawful order from FC1 L_ on 99NOV16.
Sentence: Confinement 15 days, reduction to E-1.
          CA 000229: Sentence approved and ordered executed.

000118:  To confinement.

000130:  From confinement to full duty.
000312:  Unauthorized absence from USS ENTERPRISE (CVN 65), Newport News, VA.
000315:  Surrendered onboard USS ENTERPRISE (CV 65) (3 days).

 000407:  Unauthorized absence from USS ENTERPRISE (CVN 65), Newport News, VA.

 000412:  Missed ship's movement.

000501:  Missed ship's movement.

000505:  Surrendered onboard USS ENTERPRISE (CV 65) (28 days).

000511:  Unauthorized absence from TPU Norfolk, VA.

000602:  Surrendered onboard USS ENTERPRISE (CVN 65) (23).

000618:  Summary Court-Martial
         Violation of UCMJ, Article 86 (2 Specs): Unauthorized absence from until 00APR07 to 00MAY05; 00MAY11 to 00JUN02.
 Violation of UCMJ, Article 87 (2 Specs): Missing ship's movement on 00APR12 and 00MAY01.
Violation of UCMJ, Article 112A: Wrongful use of marijuana.
Sentence: Confinement 30 days.
          CA 000718: Sentence approved and order executed.
000618:  To confinement.

 000710:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct, commission of a serious offense and drug abuse.
000711:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
000712:  From confinement to full duty.

 000726:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct, commission of a serious offense, and drug abuse.

000821:  COMCRUDESGRU 12 (GCMCA) directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 000908 under other than honorable conditions for misconduct due to drug abuse (use) (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: Regulations limit the Board’s review to a consideration of the propriety and equity of a discharge. Drug abuse (use) warranted processing for separation, normally under other than honorable conditions. 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. The Applicant ’ s service is equitably characterized as being performed under other than honorable conditions due to his own misconduct. The record clearly reflects the Applicant’s disregard for the Navy’s zero tolerance policy on drug use. Furthermore, 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.
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 lifestyle are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The Applicant did not provide any post-service documentation for the Board to review. 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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 - 11 Feb 2001, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

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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