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NAVY | DRB | 2005_Navy | ND0500628
Original file (ND0500628.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND05-00628

Applicant’s Request
The application for discharge review was received on 20050223. 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 20050620. 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. “Membrs of the Board,

I served aboard the USS AMERICA CV-66 from 1990 to 1993 and received many metals during my tour of duty. My discharge was improper due to the fact that I developed and extremely nervous condition while serving in Desert Storm. Its impossible for me to sleep a full 8 hour night and I started smoking cigarettes and marijuana to calm my nerves while serving in Desert Storm. I could not stop thinking that my life would end that day and everyday.

Instead of allowing me to enroll into some type of program that would help me with my problem the government discharged me. I would like you to consider upgrading my discharge from other than honorable to an honorable discharge.

Thank you for your time and consideration.”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
No additional documentation was submitted by the Applicant


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     900118 - 900228  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 900301               Date of Discharge: 930409

 Length of Service (years, months, days):

         Active: 03 00 11
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

Education Level: 12                        AFQT: 58

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (4)             Behavior: 3.05 (4)                OTA: 3.10

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR(w1*), NDSM, SASM(w3*), KLM

 Days of Unauthorized Absence: 29


 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 :

900914:  UA from USS AMERICA (CV 66) since 1700 on 900914.

900916:  Surrendered on board USS AMERICA (CV 66) at 1100 on 900916
 (2 days).
901002:  UA from USS AMERICA (CV 66) on 901002

901005:  Surrendered on board USS AMERICA (CV 66) on 901005 (3 days).

901007:  UA from USS AMERICA (CV 66) on 901007.

901009:  Surrendered on board USS AMERICA (CV 66) on 901009 (2 days).

901030:  UA from USS AMERICA (CV 66) from 0900 to 1100 on 901030.

901113:  NJP for violation of UCMJ, Article 86: UA from 901002 to 901005
 (3 days), UA from 901007 to 901009 (2 days), and UA from 0900 to 1100 on 901030. Award: Forfeiture of $200.00 pay per month for 1 month, extra duty for 20 days. No indication of appeal in the record.
910119:  Retention Warning from USS AMERICA (CV 66): Advised of deficiency (violation of UCMJ, Article 86, failure to go to appointed place of duty and leaving assigned place of duty, and Article 92 Failure to obey lawful order). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910508:  UA from USS AMERICA (CV 66) from 0715 on 910507 to 0600 on 910508 (22hrs/45mins/Surrendered).

910614:  NJP for violation of UCMJ, Article 86: UA from 0715 on 910507 to 0600 on 910508, UA from 0800 to 0855 on 910515, and from 0830 to 1045 on 910516; violation of UCMJ, Article 91: Willfully failed to obey a lawful order from a Chief Petty Officer on 910529. Award: Forfeiture of $376.00 pay per month for 1 month, restriction and extra duty for 30 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.
910619:  UA from USS AMERICA (CV 66) from 0555 to 0630 on 910619
 (35mins/Surrendered).
910620:  UA from USS AMERICA (CV 66) from 0555 to 0630 on 910620
 (35mins/Surrendered).
910702:  UA from USS AMERICA (CV 66) from 0600 to 0645 on 910702
 (45mins/Surrendered).
910708:  UA from USS AMERICA (CV 66) from 0600 to 0715 on 910708
 (1hr/15mins/Surrendered).
910804:  UA from USS AMERICA (CV 66) from 0700 on 910804.

910821:  Surrendered on board USS AMERICA (CV 66) at 0013 on 910821
 (17 days).
910905:  Punishment of reduction in rate to E-1 suspended at CO’s NJP of 910614 vacated due to continued misconduct.

910905:  NJP for violation of UCMJ, Article 86: UA from 910804 to 910821 (17days/Surrendered); violation of UCMJ, Article 92: Dereliction of duty on 910719. Award: Restriction and extra duty for 15 days. No indication of appeal in the record.

911021:  UA from USS AMERICA (CV 66) from 0600 to 0800 on 911021 (2hrs/Surrendered).

911118:  UA from USS AMERICA (CV 66) from 0600 to 1830 on 911118 (12hrs/30mins/Surrendered).

911120:  UA from USS AMERICA (CV 66) from 0600 to 0620 on 911120 (20mins/Surrendered).

930218:  UA from USS AMERICA (CV 66) on 930218.

930222:  Surrendered on board USS AMERICA (CV 66) on 930222 (4 days).

930226:  NJP for violation of UCMJ, Article 86: UA from 1630 on 930218 to 0630 on 930222 (4 days); violation of UCMJ, Article 112a: Wrongful use of marijuana from on or about 921210 to 921215. Award: Forfeiture of $407.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
930226:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to a pattern of misconduct, and misconduct due to drug abuse as evidenced by all nonjudicial punishments documented in the Applicant's service record.
930228:  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. Applicant did not object to the separation.

930317:  Substance Abuse/Dependency Evaluation by USS AMERICA (CV 66) Medical Department indicates a maladaptive pattern of use of marijuana with Applicant found not dependent.

930407:  Commanding Officer, USS AMERICA (CV 66) recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to a pattern of misconduct, and misconduct due to drug abuse.

930409:  BUPERS 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 19930409 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: The Applicant contends that his military service aboard the USS AMERICA
(CV 66), during which time he received numerous awards, is deserving of an honorable discharge. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A discharge with a characterization of under other than honorable conditions 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 the following: a retention warning on 19910119 for deficiencies in performance and conduct; four nonjudicial punishment (NJP) proceedings for violations of UCMJ Articles 86 Unauthorized absence (8 total specifications), 91 Willful failure to obey a lawful order, 92 Dereliction of duty, and 112a Wrongful use of a controlled substance; and the vacating, due to continued misconduct, of the portion of the sentence adjudged and suspended at the NJP on 19910614 . 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 on this basis is denied.

The Applicant further contends that he suffered from an extreme nervous condition during his service in Operation Desert Storm and that this condition mitigates his misconduct. The NDRB thoroughly reviewed the available service and medical records of the Applicant and these records in no way establish that he was not responsible for his actions or that he did not willfully and negligently commit his acts of misconduct. The Applicant's misconduct is clearly documented, as described above. The evidence of record does not show that the Applicant should not be held accountable for his actions. Relief on this basis is denied.

The Applicant also contends that his discharge was inequitable as his command did not enroll him in a program that would have helped him with his problems. The Applicant is advised that administrative separation processing for misconduct (due to pattern of misconduct) does not involve enrollment in treatment programs for any psychological or physiological conditions the member may have at the time of discharge. The Board reviewed the Applicant's service and medical records and found no evidence that the Applicant suffered from a nervous condition or was addicted to drugs or alcohol while he
was serving in the U.S. Navy. As such, the Applicant’s allegations that he was denied rehabilitative treatment for his personal problems do not refute the presumption of regularity in this case. Relief on this basis is denied.

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 or inequity after a review of the 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 the U.S. Navy. 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. The Applicant has not provided any documentation for the Board to consider. Relief on this basis is denied at this time.

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 5, effective 05 Mar 93 until 21 Jul 94), 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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