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NAVY | DRB | 2005_Navy | ND0500290
Original file (ND0500290.rtf) Auto-classification: Denied


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

ex-STGSA, USN
Docket No. ND05-00290

Applicant’s Request
The application for discharge review was received on 20041210. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requested a documentary record review. The Applicant did not list a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area. Applicant did not respond.

Decision

A documentary review was conducted in Washington, D.C. on 20050214. 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 - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “I am asking for a discharge upgrade to increase job opportunities. At the time of this application I have three years sober & have not been in any legal trouble. I have also had 2 felonies, one of which was expunged, the other reduced to a misdemeanor. I’ve been a productive member of society and I’m proud of myself. Please help me in this matter. Thank you!”

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)     851113 - 851218  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 851219               Date of Discharge: 891214

 Length of Service (years, months, days):

         Active: 03 11 24 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 56

 Highest Rate: STG3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.26 (3)             Behavior: 3.05 (4)                OTA: 3.46

 Military Decorations: None

 Unit/Campaign/Service Awards: SSR(2), USCGSOSR, AFEM

 Days of Unauthorized Absence: 75

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

860804:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance, to wit: cocaine.
         Award: Forfeiture of $372.30 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.

860826:  Retention Warning from [USS ELMER MONTGOMERY (FF-1082)]: Advised of deficiency (Wrongful use of controlled substances and having violated Article 112a of the UCMJ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890201:  Commenced unauthorized absence 0730.

890203:  Returned from unauthorized absence 0745.
890223:  NJP for violation of UCMJ, Article 86: Unauthorized absence (2 days).
         Award: Restriction and extra duty for 8 days. No indication of appeal in the record.

890223:  Retention Warning from [SSC, NTC San Diego, CA]: Advised of deficiency (Violation of the UCMJ, Article 86, unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890914:  Applicant declared a deserter on 890914 having been an unauthorized absentee since 1030, 890815 from SSC, San Diego, CA.

891031:  Report of Return of Deserter. Applicant surrendered to military authorities on 891027 (1130) at San Diego, CA. Returned to military control 891027 (1130). Delivered to parent command FORDU on 891027.
891107:  NJP for violation of UCMJ, Article 86: Did on or about 1030, 890815 without authority absent himself from his organization and did remain so until 1130, 891027 (73 days).
Award: Restriction to NTC for 45 days, extra duties for 45 days, forfeiture of $391.00 pay per month for 2 months, reduction to E-2. No indication of appeal in the record.
891124:  SSC, San Diego, CA notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by your 2 CO’s NJP’s & 1 OIC’s NJP/misconduct due to commission of a serious offense as evidenced by your unauthorized absence in excess of 30 days (60 days).
891124:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
891127:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

891204:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19891214 under other than honorable conditions for misconduct due to a pattern of misconduct (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: T he Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. No such error or inequity is evident during the Applicant’s enlistment. Relief not warranted.

A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. The Applicant’s service was marred by award of three nonjudicial punishment (NJP) proceedings for violations of UCMJ Articles 86 (Unauthorized absences totaling 75 days), and Article 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 disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an upgrade to the characterization of service. Relief denied.

The following is provided for the edification of the Applicant. 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, certification of non-involvement with civil authorities, and proof of a substance free lifestyle.

The following if provided for the edification of the Applicant. The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.




Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT.

 B. 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.

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

 D. 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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