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NAVY | DRB | 2004_Navy | ND04-00145
Original file (ND04-00145.rtf) Auto-classification: Denied



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

ex-DR, USN
Docket No. ND04-00145

Applicant’s Request
The application for discharge review was received on 20031029. 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040715. 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

Applicant’s issues, as stated on the application:

1. “I have never been in trouble with my military career. I recieved a good conduct medal and a commendation from my captain. I feel my discharge given was not all appropriate.
Please review my records. Because I was told before my separation I could request to upgrade my discharge. I requested help from my division for my misconduct but I never received any.
Thank you for your kind consideration.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR   890223 - 940906  COG
         Active: None

 Period of Service Under Review :

Date of Enlistment: 940907                Date of Discharge: 950808

Length of Service (years, months, days):

         Active: 00 11 02
         Inactive: None

Age at Entry: 21                           Years Contracted: 2

Education Level: 12 1/2           AFQT: 37

Highest Rate: DT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: NMA*                          Behavior: NMA             OTA: NMA

Military Decorations: None

Unit/Campaign/Service Awards: GCM, SASM, SSDR, CGOSR, MUC, NDSM

Days of Unauthorized Absence: 2

*No marks assigned.

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 :

940907:  Applicant reenlisted for 2 years.

950127:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 0630-0640, 941208.
         Award: Reduction to DN. Reduction suspended for 6 months. No indication of appeal in the record.

950127:  Retention Warning from [Naval Dental Center, San Diego, CA]: Advised of deficiency (Absence without leave.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950406:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 950331, tested positive for methamphetamine.

 950428:  NJP for violation of UCMJ, Article 112A (2 specs): (1) Wrongfully use methamphetamine between 950320 and 950331, (2) Wrongfully possess methamphetamine between 950320 and 950331.
         Award: Forfeiture of $250 per month for 1 month, restriction for 30 days, reduction. No indication of appeal in the record.

950502:  Vacate suspended reduction to DN awarded at CO’s NJP dated 950127.

950524:  Drug and Alcohol Abuse Report: Amphetamine abuse, abuse denied. Random urinalysis on 950331. Physician found Applicant not dependent and recommended separation. Commanding Officer recommended separation. Comments: Member’s past work performance has been above average. Possesses no potential for future naval service due to nature of offense.
950607:  NJP for violation of UCMJ, Article 86: Absent from unit on 1230, 950602 to 0700, 950605 (2 days), violation of UCMJ, Article 109: Recklessly damage a side mirror of a vehicle on 1230, 950606, of a value of $135.00, the property of ATCS K_ S_.
         Award: Restriction and extra duty for 45 days, reduction to DR. No indication of appeal in the record.
950607:  Naval Dental Center, San Diego, CA notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your nonjudicial punishment on 950428, and misconduct due to commission of a serious offense as evidenced by your nonjudicial punishment on 950607 and misconduct due to a pattern of misconduct as evidenced by your nonjudicial punishments on 950127, 950428 and 950607.

950612:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

950628:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to a pattern of misconduct. [Date extracted from BUPERS message dated 950726.]

950726:  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 19950808 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 contends that he was “never in trouble with my military career.” 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 three nonjudicial punishment proceedings for five violations of Articles of the UCMJ to include violations of Articles 86, 112a and 109. 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 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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 9, effective
22 Jul 94 until 02 Oct 96), 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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