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NAVY | DRB | 2005_Navy | ND0500296
Original file (ND0500296.rtf) Auto-classification: Denied


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

ex-CS1, USN
Docket No. ND05-00296

Applicant’s Request
The application for discharge review was received on 20041117. 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 20050608. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board did find an impropriety in the Applicant’s administrative separation. The Board’s vote was 4-1 that the character of service and narrative reason for discharge shall change. The discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/SECRETARIAL AUTHORITY, authority: NAVMILPERSMAN, Article 1910-164 (formerly 3630900) , separation code: JFF.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “V/R out of my 14 years of service my service record speaks for me. My command at Navistar FL did not support me at all. My evals shows what type of leader I am. My service awards shows my loyal and devotion to my Naval Career. One bad command should not determine my entire life. Only one Captain Mast in 14 years. I truly pray that this Board show some conservation and change my discharge to an honorable. I have no civil arrest. Thank you”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None were submitted by Applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     880726 - 890103  COG
         Active: USN                        890104 - 930102  HON
 Active: USN                        930103 - 951221  HON
Active: USN                        951222 - 030206  HON


 Period of Service Under Review :
Date of Enlistment: 030207               Date of Discharge: 040506

 Length of Service (years, months, days):

         Active: 01 02 29                  (Does not exclude lost time)
         Inactive: None

 Age at Entry: 33                          Years Contracted: 6

Education Level: 12                        AFQT: 42

 Highest Rate: CS1

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 5.00 (1)             Behavior: 4.00 (1)                OTA: 4.57

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM(2), SASM, SSDR(3), KLM, CAR, JMUA, NUC, MUC, GCM(4), AFSM, NAVY”E”(2), AFEM, NAM(2)

 Days of Unauthorized Absence: 31

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

030207:  Reenlisted at NAVSTA Mayport, FL for 6 years.
040102:  Civil Arrest: Charged at Duval County Courthouse for possession of drug paraphernalia and passing worthless checks.

040226:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86, 90, and 92.
         Finding: Not found in record.
         Sentence: 60 days restriction, reduced to E-5, forfeiture of $1841.00 pay per month for 1 month.
         CA action: Based on pre-trial agreement, the entire sentence was disapproved by the Convening Authority. [Extracted from CO’s letter of 040405.]

040226:  Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense with the least favorable characterization of service as under other than honorable conditions.
040226:  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 submit statement to the administrative board or to the separation authority in lieu of a board.
040405:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse (use). Commanding Officer’s comments (verbatim): Despite the training that Petty Officer M___ has received over his 16 years of service he disobeyed a direct order to participate in a command-directed urinalysis after it was learned he was arrested by civil authorities for possession of a crack pipe with residue in it. He also failed to report this arrest to anyone in his chain of command. It is very clear that he unwilling, of adhering to the rules and regulations of this command and the U.S. Navy. I initially preferred charges against the member to a Special-Court-Martial, however, per a plea agreement, I reconsidered and referred the case to a Summary Court-Martial and disapproved of any sentence in excess of the time he served in pretrial confinement. As part of the pretrial agreement Petty Officer M____ waived his right to an Administrative Board and would accept an Other Than Honorable Discharge. I strongly recommend that Petty Officer M___ be discharged at the earliest opportunity and his characterization of service be Other Than Honorable.

040405:  To Unauthorized Absence.

040421:  SJA approved finding and sentence.

040423:  Commander, Navy Region Southeast authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

040506:  Applicant discharged in absentia under other than honorable condition by reason of misconduct due to drug abuse (use) per DD 214.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia on 20040506 under other than honorable conditions for misconduct due to drug abuse (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 equitable but improper (C and D).

Issue 1. On 20040226, the Applicant was notified of his Commanding Officer’s intention to recommend the Applicant for discharge due to misconduct due to commission of a serious offense. On 20040405, the Commanding Officer recommended the Applicant’s discharge by reason of misconduct due to commission of a serious offense and by reason of misconduct due to drug abuse. The separation authority directed the Applicant’s discharge by reason of misconduct due to drug abuse on 20040421. Therefore, though the Applicant’s egregious misconduct was evident to the Board, the Board found that the Applicant’s discharge was improper because the Applicant was not notified that he was being processed for drug abuse and voted to change the Applicant’s narrative reason for discharge to Secretarial Authority. Characterizations of service for separations by reason of Secretarial Authority are limited to general (under honorable conditions) and honorable. Because the Applicant’s misconduct is clearly documented, the Board voted to change the Applicant’s character of service to general (under honorable conditions). Partial relief granted.

 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 . The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

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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