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NAVY | DRB | 2004_Navy | ND04-01017
Original file (ND04-01017.rtf) Auto-classification: Denied


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


ex-ABEAA, USN
Docket No. ND04-01017

Applicant’s Request
The application for discharge review was received on 20040608. 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 listed the Paralyzed Veterans of America as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050107. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated
Applicant’s issues, as stated on the application:
1. “I believe that discharging me in absentia knowing I told them I had an addiction problem, was wrong… Now because of my addiction I have to spend the rest of my life in a wheelchair… After 9/11 I was part of the first Fleet in the gulf and the greatest thing I have ever done in my life… I felt so scared when I was away from home and being in a war zone for so long ran me to drugs and when my chief, v_ It was asked me why I went AWOL I told him my problem and I was told I would to the brig; shortly after I was released, he was court martiald for commiting adultery on westpak with this first class… So I don’t think you’ll find him for questioning…”

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)     001213 - 010202  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 010203               Date of Discharge: 020515

 Length of Service (years, months, days):
         Active: 01 02 13
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

Education Level: 9                         AFQT: 47
Highest Rate: ABEAA

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: NMF*                          Behavior: NMF             OTA: NMF

 Military Decorations: None
Unit/Campaign/Service Awards: NER, NDSM

 Days of Unauthorized Absence: 62
*No Marks Found in the service record
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :
010222:  Counseling: Advised of deficiency (Failed to ensure proper documentation of your pre-service civil convictions/involvement (shoplifting)), notified of corrective actions and assistance available.
010818:  NJP for violation of UCMJ, Article 86: UA from 010710 to 010730; violation of UCMJ, Article 87: Missing ship’s movement on 010723; violation of UCMJ, Article 121: Steal a CD from NEX on 010704.
Award: Forfeiture of $521 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.        

010826:  Counseling: Advised of deficiency (Recent NJP) notified of corrective actions and assistance available.

 020118:  NJP for violation of UCMJ, Article 86 (6 specs): Failure to go to restricted muster, violation of UCMJ, Article 107: False official statement; and violation of UCMJ, Article121: Larceny from the NEX on 020113.
Award: Forfeiture of $649 per month for 2 months, restriction for 60 days. No indication of appeal in the record.
020304:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.
020322:  To UA.

 020326:  From UA, to duty [extracted from CO’s letter].

020327:  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.
020404:  To UA [extracted from DD 214].
020410:  NAVDRUGLAB, San Diego, CA reported Applicant’s urine sample, received on 020403, tested positive for THC.
020422:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and due to commission of a serious offense.
020504:  Declared a deserter [extracted from COMCARGRU THREE correspondence of 020506].

 020506:  COMCARGRU THREE 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 in absentia on 20020515 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. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions for unauthorized absences, missing movement, false official statements, and larceny. The Applicant also had additional periods of unauthorized absence and a documented instance of illegal drug use on other occasions. While he may feel that his addiction was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The Board found no indication that he was improperly or inequitably denied any medical care. 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 Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety is evident during the Applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, hardship, or good conduct in civilian life, subsequent to leaving the service. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 15560C), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                   Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                   Washington Navy Yard DC 20374-5023

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