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NAVY | DRB | 2004_Navy | ND04-01337
Original file (ND04-01337.rtf) Auto-classification: Denied


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


ex-SR, USN
Docket No. ND04-01337

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 general/under honorable conditions. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by the Disabled American Veterans. In the acknowledgment 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 review was conducted in Washington, D.C. on 20041221. 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 - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated
Applicant’s issues, as stated on the application:

 “1. My right to alcohol abuse counseling was nevr explained to me. I began counseling years after my discharge. Document 1. shows my completion of an alcohol/substance abuse program. My supervisor, BM1 H_, never made any mention on record

2. Had I known U.S. Navy counseling to be available, I would, gladly, have availed myself to it for my alcohol abuse problem.

3. During my service in the U.S. Navy, nonjudicial punishments were given (reduction in rank, forfeiture of pay, and extra duty) to me. No mention was made of the help I could be given for my alcohol problem, that I did not understand at the time, that I had.”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

 4. “Dear Chairperson:
After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable (OTH) discharge to that of General Under Honorable Conditions.
The FSM served on active service from April 9, 1989 to April 10, 1990 at which time he was discharged due to misconduct, pattern of misconduct.
The FSM, based on submittal of the application, request a records review for an upgrade of the current OTH discharge, stating he was discharged without counsel of the availability of rehabilitation programs. Regardless of this statement the FSM has submitted character reference statements from neighbors and employer that attest to the high moral character and valued citizen that he has become.

As the representative, we ask that consideration be given to equitable relief, the FSM has submitted sufficient documentation to prove a very positive change in his bearing and conduct, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.
We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Certificate of recognition
Letter of reference, dated, September 20, 2004
Letter of reference, dated September 19, 2004
Letter of reference, dated, August 5, 2004
Applicants letter referencing Disabled American Veterans (3 Pages)


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890405 - 890408  COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 890409               Date of Discharge: 900410

 Length of Service (years, months, days):
         Active: 01 00 02
          Inactive: None

 Age at Entry: 20                          Years Contracted: 4
Education Level: 13                        AFQT: 41
Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.00 (1)    Behavior: 2.00 (1)                OTA: 2.00

 Military Decorations: None

 Unit/Campaign/Service Awards: M-16 MR, ASR, AFEM
Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

890407:  Applicant briefed on the Navy’s policy on drug and alcohol abuse.
890418:  Applicant placed on command urinalysis surveillance program after being identified through urinalysis testing as a drug abuser.
891031:  NJP for violation of UCMJ, Article 92: Violation of a lawful general regulation, U.S. Navy regulation ART 1150, by wrongfully consuming alcoholic beverages while under the age of 21 years, violation of UCMJ, Article 134 (2 Specs): Drunk which conduct was of a nature to bring discredit upon the armed forces, and attempted unlawful entry to naval base, Norfolk, Va.
         Award: Forfeiture of ½ month’s pay for 1 month, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.
891031:  Retention Warning from [USS SEATTLE]: Advised of deficiency (Violation of UCMJ, ART 92, Drinking under the age of 21, and Violation of UCMJ, ART 134 (2), Drunk and Disorderly and Attempted Illegal Entry to a military installation, and Violation of UCMJ, ART 95, Resisting Apprehension), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900118:  Vacation of suspended reduction.
900118:  NJP for violation of UCMJ, Article 92: Wrongfully bring alcoholic beverages aboard USS SEATTLE, violation of UCMJ, Article 107: False official statement, violation of UCMJ, Article 112a: Wrongfully use marijuana, violation of UCMJ, Article 134: Wrongfully consume alcohol under 21 years of age.
         Award: Forfeiture of ½ month’s pay for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.

 900314:  NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample of 900223 tested positive for THC.

900322:  NJP for violation of UCMJ, Article 112a: Wrongfully use a substance containing THC, violation of UCMJ, Article 134: Wrongfully communicate a threat.
Award: Forfeiture of ½ month’s pay for 2 months, restriction and extra duty for 45. No indication of appeal in the record.
900328:  Applicant considered alcohol dependent, offered and refused alcohol rehabilitation treatment.
900328:  USS SEATTLE notified Applicant of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
900328:  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.
900404:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

900407:  CNMPC 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 on 19900410 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).
Issues 1-3: The Applicant stated that his right to alcohol abuse counseling was never
explained to him. On 19900328 the Applicant was offered and refused alcohol
rehabilitation treatment. Relief denied.
Issue 4: Normally, to permit relief, a 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.

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 three occasions for violations of Articles 92, 95, 107, 112a, and 134 of the UCMJ. 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 under honorable (general) characterization of service. 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 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT A 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:
                  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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