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NAVY | DRB | 2003_Navy | ND03-00921
Original file (ND03-00921.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND03-00921

Applicant’s Request
The application for discharge review was received on 20030502. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests 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 20040408. 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 received 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. To whom it may concern:

I’ve been through all kinds of wheather. To all extends I’ve been to every help from anger management, to finishing court appointed schedules. Due moved from U.S. Navy to Oklahoma to Calif now to Arizona. Been to discipleship for 90 days. Deciding to finish accomplish to get with the help I get with lots of patience. Trying to get schooling also if possible, acknowledging that I’m an able body to accomplish and finish the task.

I would very much appreciate that if it was a no tell policy/no truth B___ C___ Act. Just for argument sake would be possible that all I want the discharge to switch over. If by any chance.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Reference Letter from A_ E__, Case Manager, Central Arizona Shelter Services dated April 15, 2003
Reference Letter from T__ M___, Secretary, Church of the Street, dated April 16, 2003
Reference Letter from Pastor W__ R___, Church of the Street, dated April 16, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     891030 - 900702  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 900703               Date of Discharge: 930607

 Length of Service (years, months, days):

         Active: 02 11 05
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 32

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (4)    Behavior: 3.05 (4)                OTA: 3 .55

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, BATTLE”E”, NUC, SASM(wb*), SSDR

 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 :

900705:  You are being retained in the Naval Service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service civil involvement: Driving without License, Salton City, CA, July 1988, Paid $40.00 fine.

911025:  Retention Warning: Advised of deficiency (Alcohol abuse as evidenced by supervisors referral for coming to work late due to over intoxicating the night before on 910527), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning

920213:  NJP for violation of UCMJ, Article 107: Did, at NAS ALAMEDA, ALAMEDA, CA, on or about 920123, with intent to deceive, make to EM2 J__ A. M___, U.S. Navy, an official statement, which statement was then known by SN R___ to be so false; violation of UCMJ Article 112a: Wrongfully using LSD on or about 920123 as a result of a consensual urinalysis.
         Award: Forfeiture of $440.00 pay per month for 2 months, restriction to USS SAMUEL GOMPERS (AD-37) for 45 days, extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

921022:  Medical Officers’ Drug/Alcohol evaluation indicates probable ETOH dependence based upon tolerance, withdrawal, blackouts, and strong family history of alcoholism. Drug Use: episodic, experimental, not dependent. Recommended for Level III inpatient treatment. Attend AA meetings at least once per week.

930507:  NJP for violation of UCMJ, Article 125: Did on board USS SAMUEL GOMPERS (AD-37), on or about 930507, commit sodomy with ENFN M____ D. A____, USN.
         Award: Forfeiture of $456.00 pay per month for 2 months, restriction to the limits of USS SAMUEL GOMPERS (AD-37) for 45 days, extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
930507:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of homosexuality due to engaging in a homosexual act, by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse as evidenced by all incidents of drug abuse during current enlistment.
930507:  Applicant advised of her rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
930518:  Commanding Officer recommended discharge under other than honorable conditions by reason of homosexuality due to engaging in a homosexual act, by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse as evidenced by all incidents of drug abuse during current enlistment.

930521:  Accepted in-patient treatment at VA Hospital.

930527:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930603:  Declined treatment at VA hospital.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930607 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: 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, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted. At this time, the Board determined that the documentation submitted by the Applicant does not mitigate her misconduct while on active duty. 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. 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 – 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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