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NAVY | DRB | 2005_Navy | ND0500173
Original file (ND0500173.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND05-00173

Applicant’s Request
The application for discharge review was received on 20041103. 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050224. 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/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “Discharge upgrade is requested because C_ T_ (Applicant) was unable to perform at his full capacity, because of the addictive personality.”

2. “There is no excuse for my actions during my time on active duty besides my alcohol and drug addiction. My life has turned around at a alarming rate. My mind has been transformed and renewed. I’m learning how to be a productive citizen. My goal is to be a positive roll model for children who suffers from the cold world of drugs and alcohol. Please consider my decision to change for the better.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter of Support from O_ W_, Calvary Christian Center, dated October 26, 2004
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     990629 - 991111  COG

 Period of Service Under Review :
Date of Enlistment: 991112               Date of Discharge: 010329

 Length of Service (years, months, days):

         Active: 01 04 18                  [Does not exclude lost time]
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

Education Level: 12                        AFQT: 32

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)             Behavior: 2.00 (1)                OTA: 3.00

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 129

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

 Chronological Listing of Significant Service Events :

000412:  NJP for violation of UCMJ, Article 86: Unauthorized absence (6 days); violation of UCMJ, Article 87: Missing movement.
         Award: Restriction and extra duty for 45 days (15 days suspended for 3 months). No indication of appeal in the record.

000412:  Retention Warning: Advised of deficiency (You were awarded CO’s NJP for violation of UCMJ, Article 86 (Unauthorized Absence) Article 87 (Missing Movement)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000611:  NJP for violation of UCMJ, Article 134: Smuggling aliens into the country.
         Award: Forfeiture of $400.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 30 days (suspended for 6 months). No indication of appeal in the record.

000712:  Applicant to UA.

000812:  Applicant declared deserter.

001024:  Applicant surrendered.

001122:  Summary Court-Martial.
         Charge I: Violation of the UCMJ, Article 86: Unauthorized absence from on or about 000712 to 001024 (104 days). Charge II: violation of the UCMJ, Article 87: Missing ships movement on 000817, 000821, and 001008.
         Finding: To Charge I and the specification thereunder, guilty. To Charge II and the specifications thereunder, guilty.
         Sentence: Confinement for 30 days, reduced to E-1.
         CA action 001202: Sentence approved and ordered executed.

010115:  Applicant to UA.

010117:  Applicant missed movement.

010203:  Applicant surrendered.

010206:  Applicant transferred to Miramar Brig, Marine Corps Air Station, San Diego, California for pretrial confinement..

010208:  Applicant transferred to USS Abraham Lincoln.
010221:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Did on or about 010115, without authority, absent himself from his unit, to wit: USS ABRAHAM LINCOLN (CVN-72), located at Perth, Australia, and did remain so absent until on or about 010203 (19 days). Surrendered to civilian authorities; Article 87: (2 Specifications), Specification 1: Did on board USS ABRAHAM LINCOLN (CVN-72), located at Perth, Australia, on or about 010117, through design, miss the movement of the USS ABRAHAM LINCOLN (CVN-72) with which he was required in the course of duty to move; Specification 2: Did on board USS ABRAHAM LINCOLN (CVN-72), located at Hobart, Tasmania, Australia, on or about 010125, through design, miss the movement of the USS ABRAHAM LINCOLN (CVN-72) with which he was required in the course of duty to move.

010308:  Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He consulted with counsel and was fully advised of the implications of his request. The Applicant stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him. Specifically, he admitted to violating UCMJ, Article 86: Did on or about 010115, without authority, absent himself from his unit, to wit: USS ABRAHAM LINCOLN (CVN-72), located at Perth, Australia, and did remain so absent until on or about 010203 (19 days). Surrendered to civilian authorities; Article 87: (2 Specifications), Specification 1: Did on board USS ABRAHAM LINCOLN (CVN-72), located at Perth, Australia, on or about 010117, through design, miss the movement of the USS ABRAHAM LINCOLN (CVN-72) with which he was required in the course of duty to move; Specification 2: Did on board USS ABRAHAM LINCOLN (CVN-72), located at Hobart, Tasmania, Australia, on or about 010125, through design, miss the movement of the USS ABRAHAM LINCOLN (CVN-72) with which he was required in the course of duty to move. The Applicant stated he was completely satisfied with the counsel he had received. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.

010328:  Commander, Cruiser-Destroyer Group THREE, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010329 under other than honorable conditions in lieu of a trial by court-martial (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

Issues 1-2. The Applicant contends that his problems in the Navy can be attributed to his "addictive personality." While he may feel that his abuse of alcohol and drugs was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

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. The Applicant’s service was marred by a retention warning and nonjudicial punishment proceedings for violations of Articles 86, 87 and 134 of the UCMJ. The Applicant was also convicted at summary court-martial of violating Article 86 of the UCMJ for a 104-day unauthorized absence and missing movement on three occasions. The Applicant’s final 19-day unauthorized absence and two additional Article 87 violations for missing movement were not adjudicated. 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.

Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, can be considered. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. In reviewing the applicant’s post service, the Board was impressed with the efforts he has begun to make in attempting to recoup his reputation, which has been sullied by his misconduct in the Navy. However, the Applicant has provided insufficient evidence of post-service accomplishments to warrant an upgrade on this basis. Examples of documentation that should 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 Applicant provided one letter from a recovery program. Therefore, relief will not be granted at this time.

The applicant is reminded that he remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at a personal appearance hearing is highly recommended. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective
11 Jul 2000 until 21 Aug 2002, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 86, unauthorized absence for a period more than 30 days, or Article 87, missing movement, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-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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