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NAVY | DRB | 2002_Navy | ND02-01222
Original file (ND02-01222.rtf) Auto-classification: Denied


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

ex-AZAR, USN
Docket No. ND02-01222

Applicant’s Request
The application for discharge review, received 020828, 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 030619. 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. Drug & Alcohol Problems while in the Navy. Psychological and Psycriatic Problems while in the Navy. Diagnosed with bipolar disorder while in the Navy. Due to illness admitted to VA Hospital and Walter Reed Hospital, while in Navy. Inability to distinguish "right from wrong" due to continuing illness. I don't understand how to obtain my health records, but they describe my illness and how it pertains to my request.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214
SF 180

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     850830 - 851209  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 851210               Date of Discharge: 891002

 Length of Service (years, months, days):

         Active: 03 09 23
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 10 GED           AFQT: 64

 Highest Rate: AZ3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.32 (5)    Behavior: 3.03 (6)                OTA : 3.56

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

851215:  Applicant briefed on Navy's policy on drug and alcohol abuse.

 860919:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled I substance between 860721 and 860821.
         Award: Forfeiture of $167.00 for 1 month, extra duty for 14 days, oral admonition, reduction to AZAR. No indication of appeal in the record.
861020:  Retention Warning: Advised of deficiency (Drug abuse; positive urinalysis, THC.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

870120:  Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, ashore off duty, Sep82 to Sep86. Urinalysis 860821. Medical officer determined Applicant is not dependent and recommended Level II treatment. Commanding Officer recommended retention. Comments: AR (Applicant) has potential for future useful naval service. Completed Level Two outpatient counseling program at NAS Brunswick CAAC 861117, NADSAP 36 hour course with grad date of 861001, enrolled in weekly urinalysis screening program and DAPA counseling. Positive urinalysis THC resulting in NJP, violation Art 112A, oral admonition, RIR to E1, 14 days extra duty, FOP 7 days pay for 1 mo.

 881101:  NJP for violation of UCMJ, Article 86: Fail to go at time prescribed to appointed place of duty, to wit: 0645, 881025, maintenance department muster, violation of UCMJ, Article 92 (3 specs): (1) Fail to obey lawful order on 881022, issued by CO, NAS Brunswick, to wit: NASBINST 11101.3P, by having a female guest residing in BEQ room, (2) Fail to obey lawful order on 881022, issued by CO, NAS Brunswick, to wit: NASBINST 11101.3P, by keeping pets (two cats) in BEQ room, (3) Fail to obey lawful order on 881025, issued by his Division Officer, to wit: to prepare BEQ room for room inspection.
         Award: Forfeiture of $429.15 per month for 1 month, restriction for 45 days, reduction to AZAN. Reduction suspended for 6 months. No indication of appeal in the record.
881102:  Retention Warning: Advised of deficiency (Failure to obey lawful order by having a female residing in BEQ on 881022, after hours, failure to obey a lawful order by having pets (specifically 2 domestic house cats) in BEQ on 881022, failure to obey lawful on 881025, to prepare room for inspection, and failure to go to appointed place of duty on 0645, 881025.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
890131:  NJP for violation of UCMJ, Article 132 (2 specs): Preparation of fraudulent VHA certificate on 880831. (2) Submission of fraudulent VHA certificate on 880831 submitted to Disbursing Officer.
         Award: Forfeiture of $208.36 per month for 1 month, correctional custody for 7 days, reduction to AZAN. No indication of appeal in the record.
890131:  Retention Warning: Advised of deficiency (Prepare a VHA certificate for payment which claim was fraudulent on 880831, present a false VHA certificate to he Disbursing Officer on 880831. in the amount of $900.00 per month for rent), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
890721:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 92.
         Specification: Wrongfully had a female in barracks after hours.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $300.00, restriction for 60 days, reduction to AZAR.
         CA action 890729: Sentence approved and ordered executed.

890721:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
890721:  Applicant advised of his rights and having consulted 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.
890818:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

890916:  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 891002 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: In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable . 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 record is void of any evidence that the Applicant was mentally ill, not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s service record is marred by award of non-judicial punishment (NJP) on three separate occasions and a summary court-martial. The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate. 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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