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NAVY | DRB | 2005_Navy | ND0500247
Original file (ND0500247.rtf) Auto-classification: Denied


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

ex-DCFR, USN
Docket No. ND05-00247

Applicant’s Request
The application for discharge review was received on 20041115. 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 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 20050201. 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:

1. “My discharge was inequitable because it was based on one isolated incident in 21 months of service with no other adverse action. My service to the Navy was exemplary and I always paid attention to detail. When I made one mistake I told the truth and was penalized.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     940302 - 940316  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 940317               Date of Discharge: 951226

 Length of Service (years, months, days):

         Active: 01 09 10
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

Education Level: 12                        AFQT: 70

 Highest Rate: DCFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (1)             Behavior: 3.80 (1)                OTA: 3.80

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, NAVY”E”, NDSM, SSDR

 Days of Unauthorized Absence: 2

 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 :

950916:  To UA.

950918:  From UA (2days).

950918:  Statement from Applicant to MAA Office USS CALIFORNIA (CGN-36) admitting to the use of marijuana.

951025:  Statement from Applicant to MAA Office USS CALIFORNIA (CGN-36) admitted marijuana use.

951031:  Statement from Applicant to MAA Office USS CALIFORNIA (CGN-36) admitting to the use of hemp weed.

951107:  NJP for violation of UCMJ, Article 86: (2 Specifications), Unauthorized absence from unit; violation of UCMJ Article 92: Failure to obey lawful general regulation; violation of UCMJ Article 112a: Possession of a controlled substance; violation of UCMJ Article 112a: Use of a controlled substance.
         Award: Forfeiture of $427.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
951113:  Applicant notified of intended recommendation for by reason of misconduct due to drug abuse as evidenced by violation of UCMJ Article 112a (Possession of a controlled substance) and violation of UCMJ, Article 112a (Use of a controlled substance, 2 specifications) as determined by CO’s NJP on 951107 and by reason of misconduct due to the commission of a serious offense as evidenced by violation of UCMJ, Article 92 (Failure to obey a lawful general regulation), violation of UCMJ, Article 112a (Possession of a controlled substance) and violation of UCMJ Article 112a (Use of controlled substance, 2 specifications) as determined by CO’s NJP on 951107. Applicant notified least desirable character of service as under other than honorable conditions.
951113:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
951116:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense.

951213:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

951222:  NJP for violation of UCMJ, Article 86: (3 Specifications), Failure to go to appointed place of duty, violation of UCMJ Article 90: (3 Specifications), Disobeying Superior Commissioned Officer.
         Award: Forfeiture of $427.00 pay per month for 2 months, confinement 3 days bread & water. No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19951226 under other than honorable conditions for misconduct due to commission of a serious offense (A & 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).

Issue 1. The Applicant states his discharge was based on one incident in “21 months.”
Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service was marred by two nonjudicial punishment proceedings for violations of Articles 86, 90, 92 and 112a of the UCMJ. Violations of Articles 90 and 92 are considered serious offenses. 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 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.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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, however, 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.

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 92, disobey a lawful order, 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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