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NAVY | DRB | 2004_Navy | ND04-01331
Original file (ND04-01331.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND04-01331

Applicant’s Request
The application for discharge review was received on 20040823. 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. The Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041109. 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.






PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

 “1. My discharge is improper because I have been an upstanding US citizen and continuously employed and rehabilitated from controlled substances & alcohol. I am a husband & father of six. I have been married for more than 13 years. My discharge is 13 years old and I am a veteran that served my country during desert storm. Thank you for your time and consideration. Please see fit to change my Discharge to Honorable as I believe I am worthy of it. ”

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: USNR (DEP)     890824 - 890918  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 890919               Date of Discharge: 911011

 Length of Service (years, months, days):

         Active: 02 00 22
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 33

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.33 (3)    Behavior: 2.80 (3)                OTA : 3.13

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 1

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :


890822:  Applicant signs US Navy Drug and Alcohol Abuse Statement of Understanding.

Not Dated:       Recruit Training Command, Great Lakes, DAPA service record book entry: “I am advised that I have been identified, through urinalysis testing, to be a drug abuser. I understand, effective this date, that I will be placed on a drug urinalysis surveillance program and tested on a regular basis during the remainder of my assignment(s) in the accession training pipeline not to exceed 180 days from my entry on active duty. I further understand that a second drug abuse incident will result in immediate processing for separation from the naval service.”

890922:  Counseling: Advised of deficiency (non-swim qualified at recruit training), notified of corrective actions and assistance available.

900901:  Applicant to UA from NAS North Island, CA this date.

900902:  Applicant returned from UA to NAS North Island, CA this date.

901207:          NJP for violation of UCMJ, Article 92: violated lawful general order to wit: para 201(3)B of OPNAVINST 11200.5C of 08Jul88, by wrongfully failing to possess a valid state drivers license: violation of UCMJ , Article 108, without proper authority, through neglect, damage by driving off the road and wrecking U.S. Govt vehicle No. 93-25166, of value of $11,288.00, military property of the U.S., the amount said damage being $8,000.00; violation of UCMJ Art 112, on or about 01 Sep 90 operate a U.S. Govt van No. 93-25166, while drunk.
         Award: 30 days restriction and extra duty (suspended for 6 months), forfeiture $262.00 pay per month for 2 months; reduction in rank to E-1.. No indication of appeal in the record.

910128:  Retention Warning: Advised of deficiency (you appeared at CO’s NJP on 7 Dec 90, charged with VUCMJ, Art 92, 108, 111, and 112. You wrecked a government vehicle while you were driving without a driver’s license and while drunk), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910314:  NAVDRUGLAB San Diego, CA, reported Applicant’s urine sample, received 28 Feb 91, tested positive for cocaine.
910418:  NJP for violation of UCMJ, Article 112a: on or about 28 Feb 91, wrongfully use cocaine.
 Award: Vacated 30 days restriction and extra duties from CO’S NJP of 07 Dec 90. No indication of appeal in the record.
910715:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious military offense as evidenced by CO’s NJP of 07 December 1990 and misconduct due to drug abuse as evidenced by CO’s NJP of 18 April 1991.

910715:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
910918:  Applicant advised of his rights and having consulted 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.

910920:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of serious military offenses as evidenced by CO’s NJP of 07 Dec 90 and misconduct due to drug abuse as evidenced by CO’s NJP of 18 Apr 91.

910923:  Applicant signs following statement: “ On 19 Sep 91, you were diagnosed as being dependent on alcohol/drugs. In accordance with current directives, you are entitled to 30 days in-patient treatment as a Veterans Administration (VA) hospital of your choice prior to discharge from the U.S. Navy. You have the right to refuse this treatment. Your signature is requested indicating your preference.
         Applicant: “I refuse 30 days in-patient treatment at a Veterans Administration (VA) Hospital.

911003:  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 19911011 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).

Issue 1. 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.

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 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 reason for the Applicant’s discharge was misconduct due to commission of serious military offenses as evidenced by 2 nonjudicial punishment proceedings for violations of Articles 92, 108, 112, 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 is not warranted.

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. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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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