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NAVY | DRB | 2004_Navy | ND04-01302.
Original file (ND04-01302..rtf) Auto-classification: Denied


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

ex-CMCA, USN
Docket No. ND04-01302

Applicant’s Request
The application for discharge review was received on 20040819. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant listed the American Legion as his representative on 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 subsequently elected a personal appearance hearing.

Decision

A personal appearance hearing review was conducted in Washington, D.C. on 20050412. 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/Separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.






PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Issues submitted by Applicant and the representative (American Legion):
“1. (Equity Issue) This former member opines that prodromal systems of his subsequently diagnosed bipolar disorder contributed to and sufficiently mitigated his misconduct of record to warrant the Board’s relief.

2. (Equity Issue) This former member also requests that the Board consider provisions of SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), as it pertains to post-service conduct, in assessing the merits of this application.

In accordance with Title 32, CFR, Section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issues in supplement to this Applicant’s petition.

The American Legion’s express purpose in providing this statement, and any other submittals or evidence filed, is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.
 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of Applicant’s daughter’s report card (2 pages)
Certificate of completion, dated September 16, 1999
Certificate of completion, dated October 21, 1999
Certificate of completion, dated September 11, 1997
Certificate of completion, dated December 6, 2000
Certificate of membership to Amalgamated Transit Union, dated December 1, 1997
Copies of civilian medical records (12 pages)
Character reference from D_ C_, not dated
Character reference from J_ F. O_, dated April 11, 2005
Character reference from C_ A. P_, not dated
American Legion letter to Applicant, dated March 11, 2005
American Legion Cover Letter, dated August 11, 2004
Report of Contact from Department of Veteran Affairs, not dated
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     861224 - 870216  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 870217               Date of Discharge: 891215

 Length of Service (years, months, days):

         Active: 02 08 06 (Excludes lost time)
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 33

 Highest Rate: CMCA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.95 (4)             Behavior: 2.95 (4)                OTA : 3.05

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, M-16 Rifle Marksman, NER

 Days of Unauthorized Absence: 52

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

UNDER OTHER THAN HONORABLE CONDITIONS/SEPARATION IN LIEU OF TRIAL BY COURT MARTIAL, authority, NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

880425:  NJP for violation of UCMJ, Article 86: UA from place of duty 1300-1315, 880407 and 0730-0742, 880408.
         Award: Forfeiture of $100.00 pay per month for 2 months, restriction and extra duty for 5 days. No indication of appeal in the record.

880426:  Retention Warning: Advised of deficiency (Your 880425 CO’s NJP for violating Article 86, UCMJ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
880630:  NJP for violation of UCMJ, Article 86: UA from unit 880606-880615 (9 days/S); Failure to go to appointed place of duty 0800, 880618; UA from appointed place of duty 0645-0850, 880620; UA from appointed place of duty 0645-0955, 880627; and, UA from appointed place of duty 0645-0745, 880628, violation of UCMJ, Article 91: Disobey a lawful order of superior petty officer on 880627.
         Award: Restriction and extra duty for 25 days. No indication of appeal in the record.

881004:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty 1800, 880906 and 2400, 880906; UA from appointed place of duty 0030-0600, 880908; 0645-075-, 881004; and 0645-0826, 880928, violation of UCMJ, Article 91: Disobeying a lawful order from a petty officer on 880903.
         Award: Restriction and extra duty for 30 days, reduction to E-1 (suspended for 3 months). No indication of appeal in the record.
890330:  NJP for violation of UCMJ, Article 86: UA from place of duty 0540-0830, 890302, violation of UCMJ, Article 107: With intent to deceive make a false official statement on 890308.
         Award: Forfeiture of $200.00 pay per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.
890410:  Applicant notified of intended recommendation for discharge with the least favorable characterization of under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by your four nonjudicial punishments within your current enlistment and by reason of misconduct due to the commission of a serious offense as evidenced by your nonjudicial punishments of 890331 for violating UCMJ Article 107; 881004 for violating UCMJ Article 91; and 880630 for violating UCMJ Article 91.
890413:  Applicant advised of rights and having consulted with counsel certified under UCMJ, Article 27(b), elected to appear before an Administrative Discharge Board.
890512:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a pattern of misconduct and commission of a serious military offense, that the misconduct warranted separation, and recommended discharge with a general under honorable conditions.

890525:  Commanding Officer recommended discharge with a general under honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.

890720:  CNMPC directed the Applicant's discharge with a general under honorable conditions by reason of misconduct due to the commission of a serious offense.

890809:  CBC PORT HUENEME, CA requested to CNMPC to hold misconduct general discharge authority in abeyance. Member is pending disposition action for UA and urinalysis positive for cocaine. Member was transferred to CBC to await discharge authority. Upon transfer to CBC checked progress of discharge and case was not yet at NMPC. Member was not granted administrative leave for this reason, began his UA, and then tested positive for cocaine upon return from UA. Case further delayed by member’s request for exculpatory polygraph.

890823:  NJP for violation of UCMJ, Article 86: UA, violation of UCMJ, Article 112a: Wrongful use of controlled substance (cocaine).
         Award: Forfeiture of $200.00 pay per month for 1 month, restriction to CBC for 30 days, extra duty for 30 days. No indication of appeal in the record.

890829:  Applicant to unauthorized absence.

890902:  CNPC message to CBC PORT HUENEME, CA stated SNM will not be reprocessed and REF C will be executed. Originator does not hold discharges in abeyance solely for NJP. They can be held in abeyance for either court-martial or reprocessing.

891012:  Applicant apprehended by military authority this date.

891211:  DD Form 214: Applicant discharge under other than honorable conditions by reason of separation in lieu of trial by court-martial, authority: NAVMILPERSMAN, Article 3630600.

Not a complete discharge package

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19891215 under other than honorable conditions in lieu of a trial by court-martial (A and B). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).

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. The Applicant’s service was marred by award of five nonjudicial punishment (NJP) proceedings for violations of UCMJ Articles 86 (Unauthorized absence), Article 91 (Disobey a lawful order), Article 107 (False official statement), and Article 112a (Wrongful use of cocaine). The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. Relief denied.

The Applicant was diagnosed as bi-polar by competent medical authority after being discharged from the naval service. The record does not show that the Applicant’s subsequent diagnosis caused his misconduct while in service. Relief denied.

Issue 2. There is no law or regulation, which provides that an unfavorable discharge may be upgraded, based solely on the passage of time or good conduct in civilian life subsequent to leaving the naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.

The following if provided for the edification of the Applicant. The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.






Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), Change 7, effective
25 May 89 until 14 Aug 91, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURTMARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 112a, wrongful use of a controlled substance, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

 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 .
E. 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.


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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