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NAVY | DRB | 2004_Navy | ND04-01308
Original file (ND04-01308.rtf) Auto-classification: Denied


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


ex-SR, USN
Docket No. ND04-01308

Applicant’s Request
The application for discharge review was received on 20040810. 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041229. 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 considered 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 1910-146, formerly Article 3630620.








PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated

 Applicant’s issues, as stated on the application:
1. “ I received certified letter stating that my discharge was honorable. Information received from Department of Veterans Affairs on Feb 11, 2004.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of Discharge Information Letter from Department of Veteran Affairs dated February 11, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     000513 - 000525  COG
          Active: USN                        None
Period of Service Under Review :
Date of Enlistment: 000526               Date of Discharge: 010628

 Length of Service (years, months, days):
         Active: 00 10 16
          Inactive: None
Age at Entry: 22                          Years Contracted: 4

Education Level: 12                        AFQT: 55
Highest Rate: SN
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.00 (1)    Behavior: 1.00 (1)                OTA: 1.67
Military Decorations: None

 Unit/Campaign/Service Awards: None
Days of Unauthorized Absence: 62

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

010207:  UA from USS RAINIER located at NAS North Island, CA.
010207:  Missed sailing of USS RAINIER from NAS North Island, CA.

 010216:  Missed sailing of USS RAINIER from Manchester, WA.
010317:  Missed sailing of USS RAINIER from, Bremerton, WA.
010405:  Apprehended by Civil Authorities at 2030, 010405, at Norristown, PA. Returned to military control at 1130, 010418, Navy Absentee Collection and Information Center Great Lakes, LA. Received at TPU Puget Sound at 2300, 010420. Returned to USS RAINIER at 0900, 010507.
010406:  Applicant charged with two violations of Pennsylvania Crime Code Sections; The Controlled substance, Drug, Device and Cosmetic Act 64 of 1972 Section 13a Paragraph 16 Possession of a Controlled Substance (cocaine) (M); The Controlled Substance, Drug, Device and Cosmetic Act 64 of 1972 Section 13a Possession of Drug Paraphernalia (M). Applicant fined $100.00 .       

010530:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense; misconduct due to civilian conviction and misconduct due to drug abuse.
010606:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 85.
          Specification: Desertion from 010202 until apprehended on 010405. Charge II: violation of the UCMJ, Article 87. (2 Specifications), Specification 1: Missed Ship’s Movement on or about 010202; Specification 2: Missed Ship’s Movement on or about 010317.
         Finding: to Charge I and the specification thereunder, guilty. To Charge II and specifications 1 and 2 thereunder, guilty.
         Sentence: Confinement for 14 days, forfeiture of $779.00 pay per month for 1 month, reduced to E-1.
         CA action 010608: Sentence approved and ordered executed.
010606:  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.
010612:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by Summary Courts-Martial held on 010606 for violation of the UCMJ, Article 85, and violation of the UCMJ, Article 87 (2 Specifications); misconduct due to civil conviction as evidenced by enclosure (3) Police Criminal Complaint; and misconduct due to drug abuse as evidenced by his civilian conviction on 010406.
010614:  Commander, Cruiser-Destroyer Group ONE authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010628 under other than honorable conditions for misconduct due to drug abuse (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 Applicants DD-214, Block 24., Character of Service, reads, “Under Other Than Honorable Conditions”, as directed by the discharge authority, Commander, Cruiser-Destroyer Group One. The letter that the Applicant received from the Department of Veterans Affairs, Philadelphia, PA, contains an administrative error by listing the character of discharge as “honorable.”
When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions General 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 a summary court-martial where he was found guilty of violations of Articles 85 and 87 of the UCMJ. Also, the Applicant was arrested and fined by civil authorities for possession of cocaine and drug paraphernalia during a period of unauthorized absence of 62 days. 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 is not warranted.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any documentation for the Board to consider. 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. 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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 12 Feb 2001 until 15 Jul 2001, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

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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