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NAVY | DRB | 2004_Navy | ND04-00381
Original file (ND04-00381.rtf) Auto-classification: Denied


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

ex-BTFA, USN
Docket No. ND04-00381

Applicant’s Request
The application for discharge review was received on 20040105. 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 review was conducted in Washington, D.C. on 20041103. 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 4 to 1 that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 The NDRB did note administrative error(s) on the original DD Form 214. Block 18, Remarks, should contain the following statement: “CONTINUOUS HONORABLE ACTIVE DUTY FROM 880217 UNTIL 901016.” The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “I am requesting that my under other than honorable conditions discharge be change to general under honorable conditions. I asked to be placed in a rehab program but was not offered one. This offense was my first one.”

2. “I started using drugs and alcohol in 1990. This fact was known to my chain of command. I was never offered rehab or treatment. I did ask for it. [Extracted from DD Form 149.]”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
HINQ response to Applicant, dated June 19, 2003
Department of Veterans Affairs, Administrative Decision, dated December 16, 1999 (2 pages)
Letter to Applicant from Department of Veterans Affairs, signed December 17, 1999 (2 pages)
DD Form 149
Letter to Applicant from Board for Correction of Naval Records, dated September 5, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR            870925 - 880216  Active Duty
         Active: USN               880217 - 901026  HON

 Period of Service Under Review :
Date of Enlistment: 901017               Date of Discharge: 941231

 Length of Service (years, months, days):

         Active: 04 02 15
         Inactive: None

 Age at Entry: 25                          Years Contracted: 5

 Education Level: 12 GED           AFQT: 35

 Highest Rate: BT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.70 (4)    Behavior: 3.60 (4)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, GCM, Expert Pistol Medal

 Days of Unauthorized Absence: 61

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

940324:  Applicant to unauthorized absence 0715, 940325.

940404:  Applicant missed ship’s movement.

940424:  Applicant declared deserter.

 940524:  Applicant from unauthorized absence 1813, 940424 (61 days/surrendered).
940614:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 940324 to 940524.
         Charge II: violation of the UCMJ, Article 87:
         Specification: Through neglect, miss ship’s movement on 940404.
          Finding: to Charge I and II and the specifications thereunder, guilty.
          Sentence: Confinement for 30 days, reduction to E-2.
         CA action 040615: Sentence approved and ordered executed.

940614:  Applicant to confinement.

940708:  Applicant from confinement and restored to full duty.

940629:  Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Applicant’s wrongful use of cocaine on or about 940613 and misconduct due to commission of a serious offense as evidence by Applicant’s violation of the UCMJ, Article 86, unauthorized absence from 940324 to 940524; and Article 87, missing ship’s movement on 940404.
940711:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 940629, tested positive for cocaine.

940725:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit a statement. Applicant objected to the separation.
940816:  Drug/ETOH dependency screening: Applicant found drug dependent and possible ETOH as well, disclosure appeared to guarded. Plan: Offer VA rehabilitation with discharge.
941026:  Applicant’s statement.

 941113:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

941221:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941231 under other than honorable conditions for misconduct due to absent without leave (30 days or more) (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).

Issues 1 and 2: Normally, to permit relief, an impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety or inequity after a review of Applicant’s case. There is credible evidence in the record that the Applicant committed a serious offense by his unauthorized absence and that he was drug dependent. Despite the Applicant’s contentions to the contrary, the Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug dependency. The Applicant’s allegations, that he was denied assistance and counseling for his personal problems, do not refute the presumption of regularity in this case. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. 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.

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.

B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86, for unauthorized absence for a period in excess of 30 days 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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