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NAVY | DRB | 2004_Navy | ND04-00205

Original file (ND04-00205.rtf) Auto-classification: Denied

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

ex-AKAR, USN
Docket No. ND04-00205

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 documentary record 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 20040720. 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, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues in letter attached to the application:

To the Board:

I am contacting you with regards to and about my military discharge received in June of 1999. I plan to make this as brief and directly to-the-point as possible. But anyway, in September of 1996, while completing my Business Occupations and GED training at the Lyndon B. Johnson Job Corp Center in Franklin, North Carolina I decided to enlist in the United States Navy. I contacted my mother and told her about my decision. She explained to me that she thought I was too young and not yet experienced enough in the real world to enter into such a disciplined and structured work field. Of course, I did not agree. I pleaded with her until she finally agreed that she would give her consent for me to join. Upon receiving my GED and completing my technical training I, with the consent of my mother because of my age (17), left for basic training in December of 1996.

While in the military, I did not take advantage of the scholastic opportunities that were given to me, the on-base tuition assistance, or anything else that I now know I should’ve valued and taken full advantage of. My attitude at the time was lazy and my mother’s predictions proved to be accurate. Well, eventually I went AWOL while visiting home and made some extreme disregards to some of the choices I had made before leaving for the military. One in particular was smoking marijuana. Needless to say, once I reported back I was court-martialed, given 30 days in the brig, and discharged under other-than-honorable conditions.

Now that I’m 24 years of age with a wife to look after and support, I’m realizing a whole lot of things that I need and want out of life, all beginning with job security. I want to receive my Bachelor’s degree in the field of medicine/sports and become a physical therapists or something associated with physical therapy. The military offers more than I need to pursue my new life and goals. I want nothing more than to be eligible to re-enter the military and become the man that I now know I am more than capable of becoming. My past discharge and re-entry code are the only thing stopping me. That’s why I have come before you asking for mercy and basically just another chance. There isn’t one day that goes by that I really do not contemplate about what a great opportunity I had and how I should’ve taken advantage of it but was simply too young and inexperienced in the real world to know the value of what I had. So, to you, I ask for that second chance. I was told by many that I should’ve gotten a few “big” people in the community to write on my behalf and maybe I should’ve. But, I must say that no one can speak for me more clearly than myself. Only I know what’s inside of me. So, I speak for me when I say that I can do a lot better than I did. I have learned that a man can not make a promise because man does not control the future or what may happen. But I can assure you that given this second chance, your overturning of my discharge will not be in vain. Thank you for your time and consideration.

Sincerely,

M____ V___ B___

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 (DEP)     961107 - 961208 COG
         Active: USN                        None

Period of Service Under Review :

Date of Enlistment: 961209               Date of Discharge: 990620

Length of Service (years, months, days):

         Active: 02 03 00
         Inactive: None

Age at Entry: 17                          Years Contracted: 4

Education Level: 10                        AFQT: 56

Highest Rate: AKAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: NMA*        Behavior: NMA             OTA: NMA

Military Decorations: None

Unit/Campaign/Service Awards: SSDR, AFEM, BATTLE”E”, NUC

Days of Unauthorized Absence: 91

*No Marks made available for review.

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events :

980608: Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 107, false official statement to a Master-at-Arm First Class on 980423), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980608: NJP for violation of UCMJ, Article 107: False official statement to Security on 980423. Award: Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 15 days. No indication of appeal in the record.

990426: Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86: UA from unit from 990111 to 990412 (91days/S). Charge II: violation of the UCMJ, Article 112a: Wrongful use of marijuana on 981130.
         Finding: to Charge I and II, and specification thereunder, guilty.
         Sentence: Confinement for 30 days, forfeiture of $638.00 pay per month for 1 month, reduced to E-1.
         CA action 990427: Sentence approved and ordered executed.

990524: Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct; misconduct due to commission of a serious offense and misconduct due to drug abuse.

990524: 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.

990603: Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct as evidenced by his punishments with his current enlistment; by reason of misconduct due to commission of a serious offense as evidenced by his Summary Court-Martial held on 990426, for violation of the UCMJ, Article 86, unauthorized absence from unit from 990111 until 990412 and by his Commanding Officer’s NJP held on 980608, for violation of the UCMJ Article 107, false official statement on 980423; and by reason of misconduct due to drug abuse as evidenced by his Summary Court-Martial held on 990426, for violation of the UCMJ, Article 112a, wrongful use of marijuana on 981130.

990618: Commander, Cruiser Destroyer Group TWO authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia 19990620 under other than honorable conditions for misconduct due to drug abuse (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 NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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 award of nonjudicial punishment (NJP) on one occasion and a special court-martial (SCM) for violations of articles 86, 107, and 112a of the UCMJ. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) and a Summary Court-Martial for illegal drug use, thus substantiating the misconduct for which he was separated. 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 on this basis 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 additional documentation to support any claims of post-service accomplishments or any other evidence relating 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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until 26 March 2000, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

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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NAVY | DRB | 2004_Navy | ND04-00205

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