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NAVY | DRB | 2004_Navy | ND04-00319
Original file (ND04-00319.rtf) Auto-classification: Denied


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

ex-MMFR, USN
Docket No. ND04-00319

Applicant’s Request
The application for discharge review was received on 20031208. 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.
In the acknowledgment letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area. The Applicant did not respond.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20040910. 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 - 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:

“Upon being discharged from the USN I gained employment as a mason tender and continued using alcohol which eventually came to me losing that job. I moved west to Texas from Ohio where I kept using alcohol but found employment with M_ D_ roofing [telephone number deleted] I managed to obtain a G.E.D. in hope of getting a better job, but my use of alcohol landed me in jail on more than one occasion which led to my being placed in substance abuse facility for 9 months followed by 87 days in the ABODE treatment center upon release I gained employment at R_ INC doing carpentry work helping to restore old court houses in Texas. Supervisors USA Vietnam VET J__ M__ Y__ [telephone number deleted] and USMC V___ P. T___ [telephone number deleted] I’ve recently moved home to Ohio to be closer to my mother and father who are both getting older. I still attend A.A. meetings regularly and stay in touch with my sponsor in Texas and have another here in Ohio. I would like to use my military background and discharge as a reference on job applications which is the reason for my asking for a review and eventual upgrade of my discharge to general under honorable conditions. Thank you for your consideration.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copies of DD Form 214 (3)
Copy of Enlisted Performance Record
Copy of History of Assignments
Copy of Navy Occupation/Training History (2 pages)
Copy of NAVPERS 1070/604
Copy of GED
Copy of Certificate of Completion (Treatment Residential Program) dated June 6, 2002
Copy of ABODE Treatment documentation (6 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     870127 - 870129  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 870130               Date of Discharge: 900213

 Length of Service (years, months, days):

         Active: 03 00 14
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

Education Level: 10                        AFQT: 77

 Highest Rate: MMFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (3)    Behavior: 2.93 (3)                OTA: 3.00

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, AFEM

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

870226:  DAAR indicates Applicant was found not dependent, is amenable and eligible, recommended for Level I treatment.

880714:  Retention Warning from [USS PUGET SOUND (AD-38)]: Advised of deficiency (Violation of the UCMJ, Article 112a, wrongful use of a controlled substance (marijuana), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880714:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance (marijuana).
         Award: Forfeiture of $335.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

890630:  Retention Warning from [USS PUGET SOUND (AD-38)]: Advised of deficiency (Violation of the UCMJ, Article 134, drunk and disorderly), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890630:  NJP for violation of UCMJ, Article 134: Drunk and disorderly conduct.
         Award: Forfeiture of $100.00 pay per month for 1 month, restriction for 30 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.

891214:  Reduction to E-1 awarded at Commanding Officer’s mast on 890630 vacated per order of the Commanding Officer.

891214:  NJP for violation of UCMJ, Article 89: Disrespectful language towards a Superior Commissioned Officer, violation of UCMJ, Article 128: Assault, violation of UCMJ, Article 134: Drunk and disorderly conduct.
         Award: Forfeiture of $349.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record

891215:  [USS PUGET SOUND (AD-38)] notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
891220:  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.

891227:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

900108:  Applicant found alcohol dependent but did not desire treatment.
900111:  NJP for violation of UCMJ, Article 86: (14 Specifications), UA from appointed place of duty, violation of UCMJ, Article 92: (2 Specifications), Derelict in the performance of duties.
         Award: 3 days of Bread & Water. No indication of appeal in the record.

900130:  CNMPC 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 19900213 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).

 When the service of a member of the 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 twenty violations of Articles 86, 89, 92, 112a and 134 of the UCMJ. 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief is not warranted.

Outstanding post-service conduct, 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, can be considered. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. In reviewing the applicant’s post service, the Board was impressed with the efforts he has begun to make in attempting to recoup his reputation, which has been sullied by his misconduct in the Navy. However, the Applicant has provided insufficient evidence of post-service accomplishments to warrant an upgrade on this basis. Therefore, relief will not be granted at this time. The applicant is reminded that he remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at a personal appearance hearing is highly recommended. The possibility of favorable action in the applicant’s case will increase with the amount of time he maintains an alcohol and drug free lifestyle. Verifiable documentation of such a lifestyle is essential.



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 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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