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NAVY | DRB | 2003_Navy | ND03-01237
Original file (ND03-01237.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND03-01237

Applicant’s Request
The application for discharge review was received on 20030716. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “Sec Auth.” The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. The Applicant failed to respond by the deadline date to a letter requiring the Applicant to notify the Naval Discharge Review Board of intention to be present for the requested personal appearance hearing. Therefore, a documentary review was conducted, and the Applicant is not eligible for further review by this Board.


 Decision

A documentary review was conducted in Washington, D.C. on 20040514. 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 – 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. I have suffered tremendously due to the nature to my discharge. I sincerely ask for clemency, I have doing my best to be a model citizen and asset to my community.

My record of AWOL/UA indicates only minor or isolated offenses for which I can say I am truly sorry for, given another chance I would not had committed those offenses.

My discharge was based on those offenses only and are not an indication of what type of person I really am. Yes I had trouble adapting to military life, I tried, don’t hold this against me any longer please.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     880304 - 880417  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 880418               Date of Discharge: 891222

 Length of Service (years, months, days):

         Active: 01 05 24
         Inactive: None

 Age at Entry: 31                          Years Contracted: 4 (24 months extension)

 Education Level: 15 2/3                    AFQT: 88

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.00 (1)    Behavior: 2.00 (1)                OTA : 1.00

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 25

 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 :

881026:  Applicant found psychologically dependent on alcohol.

881222:  Retention Warning: Advised of deficiency (Self Referral, you have been identified by Medical Officer as alcohol dependent), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

881222:  Applicant completed inpatient treatment, commencing 1 year of aftercare.
890615:  Retention Warning: Advised of deficiency (Your failure to abide by the rules and regulations of the U.S. Navy and Uniform Code of Military Justice, as evidenced by your NJP on 890615), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890615:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0615 890531 to 1900, 890602 (2days/S).
         Award: Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 7 days. No indication of appeal in the record

890711:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0515 890623 to 0515, 890627 (4days/S).
         Award: Restriction and extra duty for 14 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.
         
890816:  Punishment of RIR to E-2 suspended for six months at OIC’s NJP of 890707 vacated due to continued misconduct.

890823:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86: Unauthorized absence from 0645 890718 to 0752, 890725 (7days/S). Charge II: violation of the UCMJ, Article 121: Wrongfully appropriate a white 1989 Honda CRX, of a value of about $10, 500, the property of another person.
         Finding: to Charge I and 2, and the specifications thereunder, guilty.
         Sentence: Confinement for 30 days, forfeiture of $466.00 pay per month for 1 month.
         CA action 890901: Sentence approved and ordered executed.

890916:  Released from confinement and restored to full duty.

890921:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by your NAVPERS 1070/607’s of 890617 AND 890812 and by your NAVPERS 1070/613 of 890711; and by reason of misconduct due to the commission of a serious offense as evidenced by your NAVPERS 1070/607 of 890912.
890921:  Applicant advised of his rights and having elected not to consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
891011:  Applicant waived/decline Administrative Board.
891020:  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 a pattern of misconduct.

891127:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86: Unauthorized absence from 0530 891019 to 2200, 891031 (12days/S). Charge II: violation of the UCMJ, Article 112a: Between 891009 and 891011, wrongfully use a schedule II controlled substance, cocaine.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Confinement for 30 days.
         CA action 891127: Sentence approved and ordered executed.

891211:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

891214:  Released from confinement and returned to full duty.

891218:          Applicant advised of right to request in-patient treatment at a Veterans Administration Hospital for his alcohol/drug dependency.

891222:          Applicant advised of right to request in-patient treatment at a Veterans Administration Hospital for his alcohol/drug dependency. Applicant declined treatment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19891222 under other than honorable conditions for misconduct due to commission of a serious offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

Issue 1. When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by nonjudicial punishment proceedings and two summary courts-martial for violations of the UCMJ to include violations of Articles 86, 112a and 121. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The separation process was in strict compliance with the Naval Military Personnel Manual. The applicant was multiple processed for separation by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct. The applicant’s misconduct, warranting separation for misconduct due to a pattern of misconduct and the commission of a serious offense, is clearly documented in the service record. The separation authority determined that a commission of a serious offense most clearly described the reason for discharge. No other Narrative Reason for Separation could more clearly describe why the applicant was discharged. To change the Narrative Reason for Separation would be inappropriate. Relief denied.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no such errors after a review of Applicant’s case. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle. As of this time, the Applicant has not provided any documentation for the Board to consider. Therefore, no relief is appropriate.


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. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 121, wrongful appropriation of property valued at or about $10,500, if adjudged at a Special or General Court-Martial

C. 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.

D. 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.

E. 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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