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NAVY | DRB | 2004_Navy | ND04-00503
Original file (ND04-00503.rtf) Auto-classification: Denied


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


ex-SR, USNR
Docket No. ND04-00503

Applicant’s Request
The application for discharge review was received on 20040204. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. In the acknowledgement 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. Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040921. 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:

 1. “I would like an upgrade because it has been 13 years since my discharge. At the time of discharge I had requested to be transferred to another division because of bad feelings with my Chief PO at the time and was denied. All I wanted to do was serve my time for my country and received nothing but grief by my division PO’s. I believe I did serve my country in a Honorable way, and for that I believe I should receive a Honorable discharge at this time. Thanks for your time. D_ N_ (Applicant)”

 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: None
          Active: None
Period of Service Under Review :
Date of Enlistment: 880725               Date of Discharge: 900424

 Length of Service (years, months, days):
         Active: 01 08 29
          Inactive: 00 04 22
Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 42
Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.00 (2)    Behavior: 2.70 (2)                OTA: 3.00

 Military Decorations: None
Unit/Campaign/Service Awards: AFEM, SSDR

 Days of Unauthorized Absence: 33
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 :

890412:  Applicant to unauthorized absence from 0500, 890412.
890414:  Applicant from unauthorized absence on 0500, 890414 (2 days/surrendered).
890415:  Applicant to unauthorized absence from 0500, 890415.
890417:  Applicant from unauthorized absence on 0500, 890417 (2 days/surrendered).
890504:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 0500, 890412 until 0500, 890414, (2) Unauthorized absence from 0500, 890415 until 0500, 890417.
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 10 days. Forfeiture of $100 for 2 months suspended for 6 months. No indication of appeal in the record.
890510:  Retention Warning from USS NEW JERSEY (BB 62): Advised of deficiency (Numerous short unauthorized absences and times late to work), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890603:  Applicant to unauthorized absence from 0500, 890603.

 890630:  Applicant declared a deserter.
890701:  Applicant from unauthorized absence 1300, 890701 (29 days/surrendered).
890721:  Summary Court-Martial.
          Charge I: violation of the UCMJ, Article 86 (2 specs):
         Specification 1: Unauthorized absence from 890603 until 890701.
          Specification 2: Unauthorized absence from 0700, 890706 until 1600, 890706.
         Charge II: violation of the UCMJ, Article 87:
         Specification: Missing movement on 890606.
         Charge III: violation of the UCMJ, Article 112A:
         Specification: Wrongful use of cocaine on 890517.
          Finding: to Charge I and the specification thereunder, guilty.
          Sentence: Forfeiture of $300.00, confinement for 30 days.
          CA action 8900723: Sentence approved and ordered executed.

890721:  Applicant found fit for confinement.
890828:  Retention Warning from USS NEW JERSEY (BB 62): Advised of deficiency (Unauthorized absence from 03 JUN-01JUL, missing ship’s movement, illegal use of cocaine), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

Undated:         Drug Evaluation: Applicant is not physiological/psychological dependent. Recommend Command Level Counseling. Random urine drug screening program.
890929:  NJP for violation of UCMJ, Article 91 (2 specs): Disrespectful in language towards a PO1 on 890920, (2) Disobey a lawful order from a PO1 on 890920.
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
900130:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence 0700-1145, 900115, (2) Fail to go at the time prescribed to appointed place of duty, to wit: Sea and Anchor detail.
Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 15 days. No indication of appeal in the record.
900222:  Applicant found fit for confinement.

 900314:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Fail to go at the time prescribed to appointed place of duty on 900310, to wit: First Div Personnel Inspection, (2) Unauthorized absence 0800-1030, 900311.
         Award: Forfeiture of $200 per month for 1 month, correctional custody for 30 days. No indication of appeal in the record.

 900314:  Correctional custody awarded at NJP is deferred until 900319 due to inadequate facility.
900319:  Punishment deferred is ordered executed.
900330:  Drug and Alcohol Abuse report submitted by NEW JERSEY (BB 62) NAVGRAM OF 900330. Applicant is not physiologically dependent on drugs. [Extracted from Commanding Officer’s message dated 900411.]
900405:  USS NEW JERSEY (BB 62) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by your three or more punishments under the UCMJ during your current enlistment, misconduct due to commission of a serious offense as evidenced by your service record, misconduct due to drug abuse as evidenced by the wrongful use of cocaine on 900323 (service directed), and by the wrongful use of cocaine on 890517 (unit sweep).
900405:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
900411:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense.
900418:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
900430:  NJP for violation of UCMJ, Article 112A: Wrongfully use cocaine on 900319.
         Award: Forfeiture of $362 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900424 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 requests the Board consider the fact that he served with honorable service. 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 five occasions and a summary court-martial for violations of Articles 86, 87, 91, and 112a 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. 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. Representation at a personal appearance hearing is recommended but not required.

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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