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NAVY | DRB | 2004_Navy | ND04-00188
Original file (ND04-00188.rtf) Auto-classification: Denied


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


ex-SA, USN
Docket No. ND04-00188

Applicant’s Request
The application for discharge review was received on 20031117. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a personal appearance hearing discharge review before a traveling panel. The Applicant did not list any representative on the DD Form 293. In the acknowledgement, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing, also advised that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington National Capital Region.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040728. 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
No issues were submitted by the Applicant.

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)     900415 – 901004  ELS
         Active: USN                        None
Period of Service Under Review :
Date of Enlistment: 901025               Date of Discharge: 920109

 Length of Service (years, months, days):
         Active: 01 02 15
          Inactive: None
Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 69

 Highest Rate: RMSA
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.00 (1)    Behavior: 2.00 (2)                OTA : 1.00
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM
Days of Unauthorized Absence: 1

 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 :

910425:  NJP for violation of UCMJ, Article 92: On or about 2105, 910412, member failed to obey a lawful order, violation of UCMJ Article 86: On or about 2100, 910412, member did, without authority, absent himself from his assigned place of duty.
         Award: Forfeiture of $175.00 pay per month for 1 month. No indication of appeal in the record.

 911031:  Retention Warning: Advised of deficiency (Any further deficiencies in performance or conduct), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

911031:  NJP for violation of UCMJ, Article 86: Absent from unit (1 day, 22 hours).
         Award: Extra duty for 30 days. No indication of appeal in the record.
911122:  NJP for violation of UCMJ, Article 86: Absent from unit (5hrs, 45 minutes); violation of UCMJ, Article 92: Failed to obey a lawful order.
         Award: Restriction and extra duty for 8 days. No indication of appeal in the record.
911204:  Applicant diagnosis:
                  AXIS I: Cocaine Abuse
                   AXIS II: Dependant and avoidant traits
                   AXIS V: GAF 70%

 911206:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, misconduct due to a pattern of misconduct and misconduct due to drug abuse, as evidenced by OIC’s NJP on 910412, violation of UCMJ 92, failure to obey a lawful order, Article 86, Absent from unit. CO’s NJP on 26Oct 91, violation of UCMJ Article 86, Absent from unit, CO’s NJP on 22 Nov 91, violation of UCMJ Article 86, Absent from unit. On November 1991, you admitted to having used illicit drugs.
911206:  Applicant advised of his 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, the right to submit statements on own behalf either verbally or in writing before an Administrative Board, or in writing if an Administrative Board is not convened and the right to a minimum of two working days to respond to the Notice of the Administrative Board Procedures Proposed Action.
911210:  Applicant’s statement.
911211:  Commanding Officer recommended discharge under other than honorable conditions by reason pattern of misconduct, commission of a serious offense, and misconduct due to drug abuse. Commanding Officer’s comments: [RMSA H_ Has demonstrated no potential for further service. He often comes up with excuses or “special circumstances” to explain his failure to adhere to military standards while failing to recognize that he must be responsible for his actions. He has made no serious effort to correct his behavior. I believe that RMSA H_’s service has been neither honest nor faithful and I strongly recommend that he be separated with a discharge characterized as Other Than Honorable.]

911231:  NJP for violation of UCMJ, Articles 86, 92 on 1, 8, 30 November and 13 Dec 91..
         Award: Restriction and extra duty for 8 days. No indication of appeal in the record.

 920106:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia 19920109 under other than honorable conditions for misconduct due to commission of a serious offense (A & 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).
The Applicant introduced no decisional issues for consideration by the Board.

 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 four nonjudicial punishment proceedings for 11 violations of the UCMJ, to include violations of Article 86, unauthorized absence and Article 92, failure to obey an order. 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 NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. There is no evidence of impropriety or inequity in the Applicant’s discharge. The Applicant’s misconduct is clearly documented. Therefore, relief is 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 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), effective 15 Aug 91 until
04 Mar 93, 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 91, failure to obey an order, 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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