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NAVY | DRB | 2003_Navy | ND03-00158
Original file (ND03-00158.rtf) Auto-classification: Denied


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

ex-HT3, USN
Docket No. ND03-00158

Applicant’s Request
The application for discharge review, received 20021106, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031003. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

1. “I volunteered for the Navy, attended schools as required, got numerous certificates of achievement (attached), served on the HEPBURN & CAPE COD & did a tour in the Arabian Gulf West/Pac & received Natl Defense, Southeast Asia & Sea Deployment Medals. I also contributed to the Veterans Education Assistance Program. I received numerous commendations & recommendations for advancement. After all this to be discharged dishonorable with only a few days to compete my full 4 years seems unfair. I wore my uniform & served with great pride for my country. Now I have had to hang my head in shame at a time when our country is in such a turmoil.

2. Please re-consider my discharge status – I truly served with pride & honor – I know I made a few mistakes but I think the punishment was a little to harsh.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
4 pages of service record
22 awards/certificates of achievements

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19891128 - 19900115      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19900116             Date of Discharge: 19931231

 Length of Service (years, months, days):

         Active: 03 11 16 (Doesn’t exclude lost time.)
         Inactive: None

 Age at Entry: 25                          Years Contracted: 4

Education Level: 12                        AFQT: 37

 Highest Rate: HT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.37 (6)    Behavior: 3.33 (6)                OTA: 3.43

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SWASM, SSDR

 Days of Unauthorized Absence: 52

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

900316:  Retention Warning from Recruit Training Command, Great Lakes, IL: Advised of deficiency (due to fraudulent entry as evidenced by failure to disclose your pre-service civil involvement – May 89 – burglary, possession of tools used in burglary; was sent to pre-trial intervention program and after completion of the program the charges were dropped), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900411:  NAVDRUGLAB Great Lakes, IL: Urine sample received on 5 Apr 90 tested positive for cocaine.
900419:  NJP for violation of UCMJ, Article 112A: Use of controlled substance to wit: cocaine..
         Award: Forfeiture of $360 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
900423:  Applicant dropped from HT “A” School due to substance abuse.

 900427:  CO, NDCTC, Philadelphia, PA notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

900427:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
900523:  Medical Officer Eval, NavHosp, Philadelphia, PA: Applicant not drug dependent, uses drugs because it is available and use is considered recreational and can be controlled by individual. Amenable to counseling. Recommend NASAP/NDSAP for educational assistance, supervisory leadership, and self discipline.
900529:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation under Other Than Honorable Condition, but recommended discharge be suspended for a period of time to be determined by Commander, Naval Military Personnel Command.

900619:  Commanding Officer processed Applicant for discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments (verbatim): “FR A_ (Applicant) reported on board this command as an HT “A” student on 01 April 1990. FR A_ (Applicant) was an above average student academically. When FR A_ (Applicant) reported into this command he was given a urinalysis test, which tested positive by DOD Lab testing. He was found not to be dependent. FR A_ (Applicant) was given an Admin Board, and was found to have committed misconduct of drug abuse. The board recommended that FR A_ (Applicant) be separated, but suspended the separation for a period of time to be determined by Commander, Naval Military Personnel Command.

900629:  CNMPC requested from Applicant’s command (NDCTC Philadelphia PA) recommendation as to discharge, suspended discharge or retention.

900703:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse, but suspended the discharge for a period of up to 12 months to further observe Applicant’s conduct.

900705:  NDCTC Philadelphia, PA advised CNMPC that the command concurs with the recommendation of the admin board.

900723:  Retention Warning: Advised of deficiency (due to wrongful use of controlled substance), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

921009:  Unauthorized absence since 0615. Intentions unknown.

921030:  Missed ship’s movement while en route from San Diego, CA.

921110:  Report of Declaration of Desertion (NMPC 1600-3): Declared deserter 08NOV92 having been an unauthorized absentee since 0615, 09OCT92 from USS CAPE COD.

921202:  Report of Return of Deserter (NMPC 1600-2): Surrendered to Military authority at 0615, 30 Nov 92, USS CAPE COD, retained on aboard pending disciplinary action (52 days).

921217:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0615, 9 Oct 92 until 0710, 30 Nov 92.
         Award: Forfeiture of $482 per month for 2 months (suspended 1 month times 6 months) , restriction and extra duty for 45 days, reduction to E-3 (suspended for six months). No indication of appeal in the record.

921219:  Retention Warning from USS CAPE COD: Advised of deficiency (you are developing a serious pattern of misconduct as evidenced by your CO’s NJP 19 Apr 90 for violation of the UCMJ Article 112a – use of a controlled substance – cocaine and on 17 Dec 92, violation of UCMJ, Article 86 – unauthorized absence from 8 Nov 92 until 30 Nov 92), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

931109:  NJP for violation of UCMJ, Article 86 (2 specs): failed to go at time prescribed to appointed place of duty: pier sentry and did go from his appointed place od duty.
Award: Forfeiture of $150 per month for 2 months, restriction and extra duty for 30 days, reduction to E-3. No indication of appeal in the record.
931115:  CO, USS CAPE COD notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by your missing ship’s movement and unauthorized absence of 52 days, misconduct due to a pattern of misconduct as evidenced by multiple violations under the UCMJ during this enlistment and misconduct due to drug abuse as evidenced by your positive urinalysis for cocaine.
931124:  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. Applicant did not object to the separation.

931124:  NJP for violation of UCMJ, Article 86: Failed to go to appointed place of duty, to wit: Quarters; R1 Division.
Award: Restriction and extra duty for 10 days. No indication of appeal in the record.
931124:  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. Applicant did not object to the separation.

931203:  Medical Officer eval: Applicant screened for alcohol/drug dependence and he is not dependent, no treatment indicated.
931207:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to a pattern of misconduct and misconduct due to drug abuse. Commanding Officer’s comments (verbatim): “HTFN A_ (Applicant) has displayed flagrant disregard for representative authority, good order and discipline. The presence of this member in an operation environment seriously impairs combat readiness, efficiency, security, and morale. HTFN A_ (Applicant) is no longer suited for further military service and is strongly recommended for immediate discharge with an other than honorable discharge”.

931221:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19931231 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).

Issues 1 and 2. The Applicant states that he received numerous certificates of achievement, commendations and recommendations for advancement and was then discharged dishonorably with only a few days to complete his full 4 years. He acknowledges that he made a few mistakes but the punishment was too harsh.

The following list of infractions of the UCMJ demonstrates the depth and severity of the Applicant’s misconduct.

1.       Retention warning for fraudulent entry: Not disclosing pre-service civil involvement in May 1989 for burglary, and possession of burglary tools charges. Charges were dropped after Applicant attended pre-trial intervention program.
2.       NJP #1: Violation of UCMJ Article 112A (wrongful use of a controlled substance (cocaine).
3.       Recommended for separation by Admin Board but separation suspended for 12 months (probationary period to allow Applicant the opportunity to correct his behavior and avoid separation).
4.       NJP #2: Violation of UCMJ Article 86 (unauthorized absence for 52 consecutive days). Violation of UCMJ Article 87 (missed ship’s movement). Received retention warning.
5.       NJP #3: Violation of UCMJ Article 86 (failure to go to place of duty).
6.       NJP #4: Violation of UCMJ Article 86 (failure to go to place of duty).
The Applicant’s misconduct significantly out weighed the positive contributions that he made during is abbreviated military career. The discharge was proper and equitable. Relief denied.

 The following is provided for the edification of the Applicant. Normally, to permit relief, an error or inequity must have occurred during the execution of the discharge for the period of enlistment in question. No errors or inequities were discovered during the execution of this 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 forward to the Board 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 (if appropriate). At this time, the applicant has not provided any documentation for the Board to consider. Therefore, no relief will be granted.
The applicant is reminded that he is 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 personal appearance hearing is recommended but not required.
Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 5, effective 05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A 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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