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NAVY | DRB | 2004_Navy | ND04-01376
Original file (ND04-01376.rtf) Auto-classification: Denied


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

ex-AR, USNR
Docket No. ND04-01376

Applicant’s Request
The application for discharge review was received on 20040902. 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.

Decision

A documentary review was conducted in Washington, D.C. on 20050316. 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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “Requesting upgrade/change so that I may reenter the military. Justification is it has been 7 years since I was discharged and I have matured a great deal since I now have 3 kids and I’m 29 years old I learned from my mistakes in the past, I would just have a second chance at life a prove that I am a good sailor. I did not know what I had when I was in previously. I was still young and sieve in my discussion making. I hope that the dissuasion made will be one that allows me back in the military (US NAVY)

Thank you for your time in this Matter

Sincerely,

S_K_ (Applicant)”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
No additional documentation submitted by the Applicant.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     940521 - 940816  ELS (Failed to graduate)
         Active: NONE

 Period of Service Under Review :
Date of Enlistment: 941214               Date of Discharge: 970627

 Length of Service (years, months, days):

         Active: 02 04 01 (Does not exclude lost time)
         Inactive: 00 02 13

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 12                        AFQT: 39

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)             Behavior: 3.00 (2)                OTA: 2.92

Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, NER, AFSM, SASM W/BRONZE STAR

 Days of Unauthorized Absence: 29

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

950227:  Ordered to active duty under the Airman Apprentice Training Program for 36 months.
951220:  NJP for violation of UCMJ, Article 121: Larceny of an AT&T card on 951003, violation of UCMJ, Article 134: Obtain services under false pretenses on 951003.
         Award: Forfeiture of $356.24 per month for 1 month, restriction and extra duties for 30 days. No indication of appeal in the record.

961014:  Unauthorized absence over regular liberty from USS GEORGE WASHINGTON (CVN 73) on this date.

961018:  Surrendered on board USS GEORGE WASHINGTON (CVN 73) on this date. (4 days/ S).

961127:  Unauthorized absence over regular liberty from USS GEORGE WASHINGTON (CVN 73) on this date.
961221:  Apprehended and returned on board USS GEORGE WASHINGTON (CVN 73) on this date. (25days/A).
970211:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (2 Specs):
         Specification 1: Unauthorized absence from unit from 961014 until 961018.
         Specification 2: Unauthorized absence from unit from 961127 until 961221.
         Charge 2: violation of the UCMJ, Article 112A (2 Specs):
         Specification 1: Use of marijuana on or about 961018.
         Specification 2: Use of marijuana on or about 961221.
         Sentence: Forfeiture of $333.00 per month for 1 month, reduced to E-1. To be confined for a period of 30 days.
         CA action 970303: Sentence approved and ordered executed.

970211:  Applicant went to confinement.

970306:  Applicant returned to full duty.

970627:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse, authority: NAVMILPERSMAN, Article 3630620.
Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970627 under other than honorable conditions for misconduct due to drug abuse (A). 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 (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. An under other than honorable conditions 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. T he Applicant’s service was marred by larceny of a calling card, obtaining services under false pretenses, unauthorized absences and illegal drug use. This misconduct resulted in nonjudicial punishment proceedings for violations of UCMJ Articles 121 and 134, and a summary court-martial conviction for violations of UCMJ Articles 86 and 112a. 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. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.
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 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.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. Reenlistment policy of the Naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054. 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.

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 . Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL 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 V, Para 502, Propriety .

 C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .
D. 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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