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NAVY | DRB | 2004_Navy | ND04-01228
Original file (ND04-01228.rtf) Auto-classification: Denied


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

ex-AR, USNR
Docket No. ND04-01228

Applicant’s Request
The application for discharge review was received on 20040726. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a personal appearance review before a traveling panel closest to Buffalo, NY. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary review was conducted in Washington, D.C. on 20041222. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “It would be an honor, if I could have a second chance to serve my country, especially the war on Terrorism. I lost friends that were killed on 9-11-01. I know my parents would be proud to se me sent into BATTLE. I still have been training and I know I can show results of being a better soldier mentally, emotionally and physically. My heart is in it more than ever.”

 Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION." None were found.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

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: 940624               Date of Discharge: 950531

 Length of Service (years, months, days):

         Active: 00 09 02
         Inactive: 00 02 05

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 44

 Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00                          Behavior: 3.00            OTA: 3.00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

 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 :

940829:  Applicant to active duty.

 950119:  Applicant notified of intended recommendation for entry level separation by reason of best interest of the service as evidenced by your issuance of a conditional threat to inflict serious bodily injury upon members of a particular race aboard your ship, the USS BELLEAU WOOD (LHA-3), a threat which seriously prejudiced good order and discipline aboard your ship
950119:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights. Applicant did not object to separation.
950119:  Commanding Officer recommended an entry level separation by reason of the best interest of the service as evidenced by your issuance of a conditional threat to inflict serious bodily injury upon members of a particular race aboard your ship, the USS BELLEAU WOOD (LHA-3), a threat which seriously prejudiced good order and discipline aboard your ship.

950227:  BUPERS reviewed Commander, U.S. Fleet Activities, Sasebo, Japan letter dated 950119 and no further action with regard to administrative separation is contemplated. Command may reprocess Applicant for misconduct due to commission of a serious offense using administrative board procedures.

950321:  Medical Evaluation: Recommend drug treatment NDRC. Residential alcohol treatment ARC. Outpatient counseling alcohol/drug at CAAC. Educational assistance alcohol/drug NASAP/NADSAP and administrative separation.
950327:  NJP for violation of UCMJ, Article 134: Unlawful entry on 2344, 950206, to wit: unlawfully enter the roof top of a secured BEQ, Building 453, violation of UCMJ Article 112A (3 specs): (1) Wrongful possession and use of a controlled substance on 2344, 950206, to wit: THC, (2) Wrongfully use THC on 0402, 950226, (3) Wrongfully possess a small amount of marijuana on 0319, 950226.
         Award: Forfeiture of $477 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
950328:  Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by all incidents during the current enlistment for which a punitive discharge could have been awarded and misconduct due to drug abuse as evidenced by all drug incidents during the current enlistment.
950328:  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.
950410:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and drug abuse as evidenced by all drug incidents during the current enlistment.

950519:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950531 under other than honorable conditions for misconduct due to commission of a serious offense (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).

 Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Relief not warranted.

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.

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. The Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion for violation of Articles 112a (Wrongful possession and use of a controlled substance) and 134 (Unlawful entry into a secured building), both violations are considered serious offenses of the UCMJ. Mandatory processing for separation is required for sailors who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. 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 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 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 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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