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NAVY | DRB | 2004_Navy | ND04-01435
Original file (ND04-01435.rtf) Auto-classification: Denied


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


ex-FN, USN
Docket No. ND04-01435

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 be changed to uncharacterized. 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 20041222. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).


PART I - APPLICANT’S ISSUES AND DOCUMENTATION


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

 1. “CRIMINAL NATURE OF DISCHARGE”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     000203 - 000215  COG
          Active:                            None
Period of Service Under Review :
Date of Enlistment: 000216               Date of Discharge: 011224

 Length of Service (years, months, days):
         Active: 01 10 08 (Lost time included)
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 49
Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None
Unit/Campaign/Service Awards: SSDR, AFEM, HSM, NDSM

 Days of Unauthorized Absence: 28
*No marks found in record
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

010425:  Retention Warning: Advised of deficiency (VUCMJ Article 92, failure to obey lawful order, US NAVREG Article 1137, failure to report an offense, Article 107, false official statement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010628:  Applicant commenced a period of unauthorized absence. [Extracted from DD Form 214.]
010710:  Applicant ended a period of unauthorized absence (12 days). [Extracted from DD Form 214.]

 010713:  NJP for violation of UCMJ Article 86: Unauthorized absence. [Extracted from NAVPERS Form 1070/613. No other information in the record.]
010713:  Retention Warning: Advised of deficiency (Applicant’s NJP on this date for VUCMJ Article 86, unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

011105:  Applicant commenced a period of unauthorized absence.

 011113:  Applicant surrendered from unauthorized absence (8 days).
011119:  Applicant commenced a period of unauthorized absence.
011127:  Applicant surrendered from unauthorized absence (8 days).
011130:  NAVDRUGLAB San Diego, reported Applicant’s urine sample, received on 011126, tested positive for THC.
011207:  NJP for violation of UCMJ, Article 86 (2 specs): unauthorized absence for a total of 16 days, violation of UCMJ, Article 112a: wrongful use of a controlled substance (marijuana).
         Award: Forfeiture of $584.55 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3 (reduction and forfeitures suspended 6 months). No indication of appeal in the record.

 011210:  Applicant notified 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.
011210:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.
011214:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
011221:  COMPHIBGRUTHREE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011224 under other than honorable conditions for misconduct due to a pattern of misconduct (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. There is credible evidence in the record that the Applicant used illegal drugs. Mandatory processing for separation is required for sailors who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. T he Applicant’s service was marred by nonjudicial punishment proceedings for violations of UCMJ Articles 86, unauthorized absence, and 112a, wrongful use of a controlled substance. 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. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Furthermore, the evidence of record does not indicate that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. 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 15560C), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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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