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NAVY | DRB | 2003_Navy | ND03-00083
Original file (ND03-00083.rtf) Auto-classification: Denied


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

ex-ABEAR, USN
Docket No. ND03-00083

Applicant’s Request
The application for discharge review, received 20021015, 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030912. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I used marijuana & and it was in my system. I feel that this is too harsh a punishment. I stopped using marijuana when I got kicked out of the Navy. I will submit to a drug test if necessary. I only used the drug a couple of times.

 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: USNR (DEP)     19950928 - 19960115      COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 19960116             Date of Discharge: 20000115

 Length of Service (years, months, days):

         Active: 04 00 00
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 50

 Highest Rate: ABEAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.00 (1)    Behavior: 1.00 (1)                OTA: 1 .67 (5.0 Evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: NAVY”E”RIBBON, SSDR(2 ND ), AFEM

 Days of Unauthorized Absence: 30

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

961112:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 128 (3 Specifications)Assault. Charge II: violation of the UCMJ, Article 134: (2 Specifications) Drunk and Disorderly.
         Finding: to Charge I and II, and the specifications thereunder, guilty.
         Sentence: Confinement for 20 days.
         CA action 961216: Approved findings and sentence.

961128:  Member released from confinement and returned to full duty.

970320:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 128: Assault. Charge II: violation of the UCMJ, Article 134: Drunk and Disorderly.
         Finding: to Charge I and II, and the specifications thereunder, guilty.
         Sentence: Reduction to E-1, restriction for 60 days.
         CA action 970403: Approved findings and sentence.

980311:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 128: (2 Specifications), Assault consummated by a battery.
         Finding: to Charge I and specification thereunder, guilty.
         Sentence: Confinement for 25 days, forfeiture of $616.00 pay per month for 1 month, reduction to E-1.
         CA action 970403: Approved findings and sentence.
980331:  Member released from confinement and returned to full duty.
981119:  Retention Warning: Advised of deficiency (Summary Courts-Martial on 980311, for violation of UCMJ, Article 128 (2 Specs) Assault consummated by a battery; 970320, violation of UCMJ, Article 128; Assault, Article 134: Drunk & disorderly; 961112, Article 128 (3 Specs), Article 134: (2 Specs) Drunk & disorderly.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

981228:  UA from 981228 to 981229 (1day/S).

990805:  UA from 990805 to 990903 (29 days/S).

 990915:  NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana on or about 990617.
         Award: Forfeiture of $479.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
991006:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, misconduct due to pattern of misconduct, and misconduct due to drug abuse as evidenced by all punishments under the UCMJ, your special court-martial conviction on 990917 and all incidents in your current enlistment.
991006:  Applicant advised of his 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.
991009:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to pattern of misconduct, and misconduct due to drug abuse.

991021:  COMCRUDESGRU THREE 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 20000115 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, D, and E).

Issue 1. The Applicant admits to using marijuana but states his punishment was too harsh.

During the course of the Applicant’s Navy career he had three Summary Court Martials for assault and drunk and disorderly (961112, 970320, and 980311). Not until he was subsequently found guilty at NJP of drug abuse (990915) was he discharged from the Navy. The discharge was proper and equitable.

 Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No errors or inequities occurred during the execution of the Applicants discharge. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Outstanding post-service conduct, 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 can be considered. Examples of documentation to provide the Board for consideration of post-service accomplishments should include proof of educational pursuits, verifiable employment record(s), documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle. At this time, the applicant has not provided any documentation for the Board to consider. Therefore, no relief will be granted.
He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his 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 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION 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.
E. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 128 (assault consummated by battery), if adjudged at a Special or General Court Martial

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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