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NAVY | DRB | 2003_Navy | ND03-00128
Original file (ND03-00128.rtf) Auto-classification: Denied


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

ex-EMFN, USN
Docket No. ND03-00128

Applicant’s Request
The application for discharge review was received on 20021101. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031114. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated:

1. “I AM REQUESTING TO HAVE MY DISCHARGE UPGRADED SINCE I HAVE BEEN DRUG FREE SINCE MY LAST URINALYSIS WITH THE USN. I AM A PRODUCTIVE MEMBER OF SOCIETY, HONOR STUDENT, EMERGENCY MEDICAL TECH PROGESSING TO PARAMEDIC, ACTIVE MEMBER WITH THE RELIGIOUS EDUCATION PROGRAM, AND I AM TRYING TO GET A BETTER PAYING CAREER SO I CAN FURTHER ADVANCE MYSELF. PLEASE GRANT MY REQUEST .”

 Comments submitted by Applicant’s counsel/representative ( American Legion):
“ On behalf of the above referenced applicant, and in accordance with 32 C.F.R., section 724.166; SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the following informal comments; and/or issue(s).

This former member was discharged Under Other Than Honorable Conditions due to a pattern of misconduct as authorized by NAVMILPERSMAN, Art. 1910-140.

Essentially, as noted on DD-293, this applicant is requesting that his discharge be upgraded because he has been drug free since discharge and because of his good post-service conduct. He has submitted 9 pages of additional documentation attesting to his post-service educational pursuits and community involvement for consideration.

The SR reflects that SNFM was awarded NJP on 000516 for VUCMJ, Arts. 86, 87 (2 specs); NJP on 000713 for VUCMJ, Arts. 86, 112a and convicted by SCM on 000817 for VUCMJ, Arts. 86, 134 (3 specs). Following due process notifications, he was discharged for the misconduct 001006. Following review of the official Naval records, we opine that the issues raised on DD Form 293 amply advance this former member’s contentions and substantially reflect the probative facts needed for equitable review. Accordingly, we rest further comment on the evidence of record.

The American Legion’s express purpose in providing this statement, and any other submittals or opinions of record, is to aid the applicant in resolving any improprieties or inequities in the character and basis for discharge. Moreover, we rest assured that the Naval Discharge Review Board’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724; SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted to the Board for deliberation and disposition.”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Indian River Community College grade report
Applied Technology Diploma, dated May 4, 2002
Certificate of completion for IV Therapy, dated August 15, 2002
Certificate for Emergency vehicle operator course – ambulance, dated April 20, 2002 to April 21, 2002
Official certification
Certificate of appreciation
Dean’s List letter, dated May 13, 2002
Florida transcript of Applicant’s driver record
Character reference from Applicant’s Pastor, dated October 22, 2002
Statement in support of claim, dated December 15, 2002
Applicant’s DD Form 214 (Member 1 and 4 and copy 6
Travel certificate, separation without orders, dated September 19, 2000
Enlisted strength loss
Letter of commendation, dated March 2, 1998
Thank you flyer to U.S. Navy volunteers
Evaluation Report and Counseling Records, March 11, 1998 to August 6, 1998, August 7, 1998 to April 9, 1999, April 10, 1999 to October 22, 1999, and October 23, 1999 to May 24, 2000 (First page only)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19971223 – 19971230      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19971230             Date of Discharge: 20001006

 Length of Service (years, months, days):

         Active: 02 09 07
         Inactive: None

 Age at Entry: 20                                   Years Contracted: 4

 Education Level: 12                                 AFQT: 85

 Highest Rate: EM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.75 (4)*                     Behavior: 2.50 (4)*               OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 129

*Evaluation extracted from supporting documents submitted by the Applicant.

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

990930:  Retention Warning: No further information found in service record. [Extracted from page 2 of Commanding Officer’s letter, unknown date.]
000516:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0730, 000411 until 1924, 000511 (30 days), violation of UCMJ, Article 87 (2 specs): (1) Missing ship movement on 000417, (2) Missing ship movement on 000427.
         Award: Forfeiture of $617 per month for 1 month, correctional custody for 30 days, reduction to EMFN. No indication of appeal in the record.
000713:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 000516 to 000710 (54 days), violation of UCMJ, Article 112A: Wrongful use of marijuana on 000515.
         Award: Forfeiture of $500 per month for 2 months, restriction for 60 days, reduction to EMFA. No indication of appeal in the record.
000713:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.
000713:  Applicant advised of 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

000724:  NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 000712, tested positive for THC.

Unknown:         Commanding Officer recommended discharge under other than honorable conditions. Commanding Officer’s comments (verbatim): It was determined that EMFA (Applicant) lacks the potential for continued naval service. Per reference (a) through (c), he is being processed for administrative separation. After Captain’s Mast on 13 July 200 EMFA (Applicant) was awarded 60 days restriction. Once reporting to restriction for one night EMFA (Applicant) took it upon himself to go on unauthorized absence. I recommend that he be separated in absentia from the United States Navy with an Other than Honorable discharge. [Service record only contained page 2 of Commanding Officer’s recommendation.]

000817:  COMSUBGRU TWO directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.


000831:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 96:
         Specification: Unauthorized absence from 000714 to 000829, (45 days/apprehended).
         Charge II violation of the UCMJ, Article112A:
         Specification: Wrongful use of marijuana.
         Charge III: violation of the UCMJ, Article 134 (3 specs):
         Specification 1: Break restriction on 000714.
         Specification 2: Wrongfully solicit Seaman to break restriction by leaving with him from the restricted barracks on 000713.
         Specification 3: Wrongfully solicit Seaman to break restriction by leaving with him from the restricted barracks on 000713.
         Finding: to Charge I, II and III and the specifications thereunder, guilty.
         Sentence: Confinement for 1 month, forfeiture of $753.00, reduced to EMFR.
         CA action: Not found in record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20001006 under other than honorable conditions for misconduct due to a pattern of misconduct (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 Applicant requests the Board to consider his post-service conduct in assessing the merits of his application for discharge upgrade. Applicant further stated that an upgrade would help him obtain a better paying job.

The NDRB is authorized to consider outstanding post-service factors in the re-characterization 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. The Board commends you on obtaining various medical certificates, and your active pursuit of higher education. The Board also commends the Applicant on being drug free since leaving the Naval Service. The Board recognizes that the Applicant has made steps towards establishing a reputation as a productive member of society. The Applicant is encouraged to continue his pursuits of bettering himself. While this accomplishment demonstrates that the Applicant has made significant strides in establishing his credibility as a productive member of society these accomplishments do not mitigate the seriousness of his misconduct and therefore do not warrant recharacterization of his discharge. Relief denied.

For the Applicant’s edification, the Board is not authorized to upgrade a discharge based solely on his desire to obtain more favorable employment.

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 15560C), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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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