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NAVY | DRB | 2004_Navy | ND04-01422
Original file (ND04-01422.rtf) Auto-classification: Denied


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

ex-AKAA, USN
Docket No. ND04-01422

Applicant’s Request
The application for discharge review was received on 20040917. The Applicant requests the characterization of service received at the time of discharge are changed to honorable and the reason for the discharge be changed to “convenience of the government, a reenlistment code change to RE-1, and corresponding separation program number designator”. The Applicant requests a personal appearance discharge review before a traveling panel closest to Pico Rivera, California. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in Washington DC at the Washington Navy Yard. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary review was conducted in Washington, D.C. on 20050616. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“My conduct and efficiency ratings/behavior and proficiency marks were mostly good, aswauth [A92.02]

I have been a good citizen since discharge ASWAUTH [A92.22]

My ability to serve was impaired due to personal problems aswauth A93.10

My use of drugs impaired my ability to serve aswauth A931.8

Phsychiatric problems I had impaired my ability to serve. aswauth A93.24.

I was discharged before I was given any drug/psychological treatment. aswauth A64.04”

Other issues will follow”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Applicant’s resumé
Letter of Reference from Dr. L_ E_, dated November 28, 2001
Certificate from East Los Angeles College, Dean’s Honor List, dated September 15, 2000
Letter to Applicant from California State University, dated February 2002
 Rogers v. Dalton , No. C-94-3388 EFL, U.S. Dist. Court for the Northern Dist. of California, dated March 15, 1995 (3 pages)
Applicant’s service related documents (50 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     930519 - 930621  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 930622               Date of Discharge: 951105

 Length of Service (years, months, days):

         Active: 02 04 14         (Does not exclude lost time)
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 51

 Highest Rate: AKAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.30 (2)             Behavior: 2.40 (2)                OTA: 3.20

 Military Decorations: None

 Unit/Campaign/Service Awards: NER, NDSM, SSDR, MUC

 Days of Unauthorized Absence: 78

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

950414:  Applicant to unauthorized absence 1130, 950414.

950416:  Applicant returned from unauthorized absence 0730, 950416 (1 day/surrendered).

 950418:  Applicant to unauthorized absence 0730, 950418.

 950517:  Applicant returned from unauthorized absence 0045, 950517 (28 days/surrendered).
950517:  Applicant’s statement.

950522:  Applicant to unauthorized absence 0730, 950522.

 950525:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 950519, tested positive for methamphetamine.

950602:  Applicant missed ship’s movement.

950612:  Applicant missed ship’s movement.

950622:  Applicant declared a deserter.

950627:  Application for 72-hour detention for evaluation and treatment for attempt to hang himself. Probable cause to believe Applicant is a danger to self.

950629:  Psychosocial Assessment: Treatment and Discharge Plans: Stabilize patient. Will go home when stable.

 950711:  Applicant from unauthorized absence 2316, 950711 (50 days/surrendered).
950714:  NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence from 950414 to 950416, (2) Unauthorized absence from 950418 to 950517, (3) Unauthorized absence from 950522 to 950711, violation of UCMJ Article 87 (2 specs): (1) Missing ship’s movement on 950602, (2) Missing ship’s movement on 950612, violation of UCMJ, Article 112a: Wrongfully use methamphetamine on 950517.
         Award: Forfeiture of $478 per month for 2 months, restriction for 60 days, reduction to E-2. No indication of appeal in the record.
950714:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse and commission of serious offense. The Applicant was notified that the least favorable characterization of service possible is under other than honorable conditions.
950721:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.
950808:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a drug abuse and serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

950916:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and commission of serious offense.

950923:  Applicant apprehended by civilian authority on 0202, 950923 at Montebello, CA.

950923:  Applicant returned to military control on 0600, 950923 by Navy Deserter Information Point, Washington, DC.
951018:  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 19951105 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, 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. 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 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 unauthorized absences totaling 79 days, missing ship’s movement and illegal drug use. This misconduct resulted in nonjudicial punishment proceedings for violations of UCMJ Articles 86, 87, and 112a. Under applicable regulations, violations of UCMJ Articles 86, 87, and 112a are all considered serious offenses. 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 could be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Board received and considered all of the Applicant’s submissions, including his letter of reference, resumé, and academic achievements. As of this time, the Applicant’s post-service conduct has been insufficient to mitigate his misconduct while in the Naval service. Relief denied.

 The Applicant contends his disciplinary problems were the result of stress caused by unspecified personal problems. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that many members of the Navy endure hardships similar to those of the Applicant. It must further be noted that the vast majority of those members do not commit misconduct as a result of their problems. Despite their hardships, these sailors are still able to serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

The Applicant contends that drug use and mental illness were the causes of his misconduct. Notwithstanding the veracity of his claims, such conditions will not normally excuse a servicemember from legal liability for his misconduct, unless the Applicant can show a lack of mental responsibility through the presentation of substantial and credible evidence. T he evidence of record failed to demonstrate that the Applicant was unable to appreciate the nature and quality or the wrongfulness of his acts. As such, the Board presumed that the Applicant was responsible for his misconduct and concluded that he should be held accountable for his actions. Relief denied.

The Applicant contends that because he was discharged prior to receiving treatment for drug or psychological problems his discharge should be upgraded to honorable. Applicable regulations indicate that servicemembers found to be drug dependent are eligible for rehabilitation treatment prior to discharge. Nothing in the Applicant’s service record indicates that he was diagnosed as drug dependent and thus eligible for rehabilitation treatment. Therefore, the Board concluded that no inequity occurred in the Applicant’s characterization of service as a result of him not being offered drug rehabilitation treatment. Likewise, the Applicant contends that his discharge was inequitable because he never received psychological treatment from the Navy. Despite his contentions, the Navy never diagnosed the Applicant as suffering from any psychological condition. As such the failure of the Navy to offer the Applicant psychological treatment cannot be viewed as an inequity. 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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.
B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86, unauthorized absence for a period in excess of 30 days, Article 87, missing ship’s movement, and Article 112a, wrongful use, possession, etc. of controlled substances, if adjudged at a Special or General Court-Martial.
C. 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.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 E. 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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