Search Decisions

Decision Text

NAVY | DRB | 2005_Navy | ND0500735
Original file (ND0500735.rtf) Auto-classification: Denied


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

ex-MSSN, USN
Docket No. ND05-00735

Applicant’s Request
The application for discharge review was received on 20050330. 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 20050713. 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 – commission of a serious offense, 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 requesting an upgrade from “other than honorable” discharge to a “general” discharge based on my service record.

A. Never an EVAL mark below 3.8
B. 3 Letters of Commendation in 2 yrs
C. E-1 to E-5 in less than 18 months
D. Service in S.W. Asia during Persian Gulf

I have live with an other than honorable discharge for over 10 years for “1” indiscretion. I am respectfully requesting an up-grade to general.


                           Thank you for consideration
                           Respectfully
                           B___C. B____”


Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant dated March 23, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890322 - 890410  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 890411               Date of Discharge: 920110

 Length of Service (years, months, days):

         Active: 02 09 01
         Inactive: None

 Age at Entry: 25                          Years Contracted: 4 (12 month extension)

 Education Level: 10                        AFQT: 76

 Highest Rate: MS2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.56 (5)             Behavior: 3.36 (5)                OTA : 3.76

 Military Decorations: None

 Unit/Campaign/Service Awards: LOC, NUC, SSDR, NDSM, SASM(3)

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

910316:  NJP for violation of UCMJ, Article 92: Gambling with playing cards for money on 910301.
         Award: Forfeiture of $150.00 pay per month for 1 month, restriction for 10 days (suspended for 6 months). No indication of appeal in the record.
910316:  Retention Warning: Advised of deficiency (As evidenced by your misconduct in which you were awarded CO’s NJP on 910316 for a violation of the UCMJ, Article 92, Disobeying a lawful general regulation by gambling on board USS SARATOGA (CV-60) with playing cards for money), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
910927:  NAVDRUGLAB, OAKLAND, CA, reported Applicant’s urine sample, received 910919, tested positive for cocaine.

911011:  NJP for violation of UCMJ, Article 112a: Wrongfully use cocaine on or about September 1991.
         Award: Forfeiture of ½ pay per month for 2 months, restriction for 60 days, reduction to E-4. No indication of appeal in the record.

911030:  Applicant evaluated by Counseling and Assistance Center, NAS Whidbey Island. Applicant does not appear dependent on alcohol or drugs. Recommend administrative separation.

911109:  Medical evaluation for drug abuse found Applicant not dependent.
911205:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your illegal or wrongful use and possession of cocaine and misconduct due to the commission of a serious offense as evidenced by your disobedience of a lawful general regulation.
911205:  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 and to submit statements on own behalf either verbally or in writing before an Administrative Board, or in writing if an Administrative Board is not convened.

911206:  Applicant’s statement to BUPERS.
911220:  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.

920115:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920110 under other than honorable conditions for misconduct due to commission of a serious offense (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).

Issue 1. 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 two nonjudicial punishment proceedings for violations of Articles 92 and 112a of the UCMJ. Violations of Article 92 of the UCMJ are considered serious offenses. The Applicant’s proficiency and conduct averages are, respectively, 3.56 and 3.36, and reflect the Applicant’s overall service during his enlistment. 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 Applicant contends his discharge is inequitable because it was based on one incident. The Applicant was discharged for misconduct due to commission of a serious offense as the result of an Article 92 violation that occurred prior to the Applicant’s illegal drug use. 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. Further, mandatory processing for separation is required for sailors who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Relief denied.

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. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until
04 Mar 93, 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, failure to obey an order or regulation, 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

Similar Decisions

  • NAVY | DRB | 1997_Navy | ND97-01371

    Original file (ND97-01371.rtf) Auto-classification: Denied

    A member may be separated for misconduct when it is determined, under MILPERSMAN 3610200, that the member is unqualified for further military service by reason of one or more of the following circumstances: If separation of a member in entry level status is warranted solely by reason of minor violations of the UCMJ, and the member's misconduct does not meet the eligibility requirements for processing due to a pattern of misconduct or commission of a serious offense, the processing should be...

  • NAVY | DRB | 1999_Navy | ND99-01249

    Original file (ND99-01249.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Copy of DD Form 214 Letter from applicant outlining event leading to discharge (3pgs). 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).The applicant’s issue states: “If more evidence is needed to verify that there was a need for me...

  • NAVY | DRB | 2004_Navy | ND04-00868

    Original file (ND04-00868.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. PART I - APPLICANT’S ISSUES AND DOCUMENTATION Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 (2) PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USNR (DEP) 19900628 - 19900912 COG Active: None Period of Service Under...

  • NAVY | DRB | 2000_Navy | ND00-00868

    Original file (ND00-00868.rtf) Auto-classification: Denied

    ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.960111: NJP for violation of UCMJ, Article 112: Drunk on duty on 15Dec95. I strongly recommend he be separated from the naval service and characterizing his discharge as Other than Honorable.960716: Chief of Naval Personal recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs) applicant be discharged General (under Honorable...

  • NAVY | DRB | 2005_Navy | ND0500772

    Original file (ND0500772.rtf) Auto-classification: Denied

    Decision A documentary discharge review was conducted in Washington, D.C. on 20050812. CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.Complete discharge package not contained in service record 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

  • NAVY | DRB | 2001_Navy | ND01-01085

    Original file (ND01-01085.rtf) Auto-classification: Denied

    (Equity Issue) This former member further requests that the Board include provision of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. 920317: BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. The separation authority directed the applicant’s discharge under other than honorable conditions, despite the...

  • NAVY | DRB | 2001_Navy | ND01-00826

    Original file (ND01-00826.rtf) Auto-classification: Denied

    In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. An employment record, documentation of community service, certification of non-involvement with civil authorities and proof drug /alcohol rehabilitation, if applicable, are examples of additional documents that should have been provided to receive consideration for relief, based on post-service conduct. ...

  • NAVY | DRB | 2002_Navy | ND02-01222

    Original file (ND02-01222.rtf) Auto-classification: Denied

    The Applicant requested a documentary record discharge review. Drug & Alcohol Problems while in the Navy. Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Applicant's DD Form 214 SF 180 PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USNR (DEP) 850830 - 851209 COG Active: None Period of Service Under Review :Date of Enlistment: 851210 Date of Discharge:...

  • NAVY | DRB | 2001_Navy | ND01-00001

    Original file (ND01-00001.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Copy of Applicant's Private Pilot license Copy of DD Form 214 (2 copies) Applicant's Explanation Letter for Issue 1 dtd 27 Jan 2000 Applicant's Explanation Letter for Issue 2 dtd 6 Jun 2000House of Representative B_ O_ ltr of Apr 20, 1994 to RADM W_ J. F_ concerning applicant House of Representative B_ O_ ltr of May 13, 1994 to the Applicant Application...

  • NAVY | DRB | 1999_Navy | ND99-01087

    Original file (ND99-01087.rtf) Auto-classification: Denied

    Charge I: violation of the UCMJ, Article 86: Specification: Unauthorized absence from 9Jul90 to 14AUG90 (36 days). 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).In the applicant’s issue 1, the Board determined this issue is without merit. The applicant claims he successfully completed the first 4 years of his enlistment and because he was not transferred to a...