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NAVY | DRB | 2005_Navy | ND0500810
Original file (ND0500810.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-EMFA, USN
Docket No. ND05-00810

Applicant’s Request
The application for discharge review was received on 20050407. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) and the Narrative Reason for Separation be changed to “General under honorable conditions.” The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060113. 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 and reason for discharge shall not change shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“With all due respect. I was in training while a family member was put into critical conditions and I wanted to be by his side. (Gram paw) I was on the right track getting promoted to an E-4 right B-4 the family tragedy. That’s when I slacked off... checked my records. I did what I was told to do to earn my promotion to E-4. Right before I was to get my chevron sewed to my dress blues, I received a Red Cross message-“My Grandfather has been ran over, hit-n-run, and his skull has been crushed slightly. He’s in critical condo” I wanted to go home; the navy said no to me. I’ve did every order you gave me, earned promotion, now I can’t see my Grand Paw who’s been run over? Let me out the navy then... I couldn’t be released that easy, I asked the Chaplin several times. Finally I took matters into my own hands. I became a “rebel” against the rules just so I could be by Grand Paw to see his health come back quick! I never wanted to leave the military I just was made to make a decision on which family was more important/no hard feelings [signed] J_ R_.”

 Documentation
Only the service and medical records was reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20000229 – 20000329               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20000330             Date of Discharge: 20010521

 Length of Service (years, months, days):

         Active: 01 00 21 (Excludes lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 31 days
         Confinement:              none

 Age at Entry: 25

 Years Contracted: 4

Education Level: 12                                 AFQT: 53

 Highest Rate: EMFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                  Behavior: NA*             OTA: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None
* Not Available


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

UNDER OTHER THAN HONORABLE CONDITIONS/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

000229:  Enlistment waiver approved for one non-minor misdemeanor (possession of marijuana).

000229:  An additional waiver approved for one non-minor misdemeanor (petty theft).

001103:  Applicant on unauthorized absence status from 0600-0800.

001103:  Applicant to unauthorized absence at 2145.

001106:  Applicant from unauthorized absence at 1824.

001122:  Retention Warning: Advised of deficiency (Poor military performance, to wit: unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

001122:  NJP for violation of UCMJ, Article 86 (2 specs), Unauthorized absence:
 Specification 1: In that Fireman J_ R_, U.S. Navy, Service School Command, Great Lakes, Illinois, on active duty, did, on or about 0600 hours, 001103, without authority, absent himself from his organization to wit: Service School Command, Great Lakes, Illinois, and did remain so absent until on or about 0800, 001103. A period of approximately 2 hours.
Specification 2: In that Fireman J_ R_, U.S. Navy, Service School Command, Great Lakes, Illinois, on active duty, did, on or about 2145 hours, 001103, without authority, absent himself from his organization to wit: Service School Command, Great Lakes, Illinois, and did remain so absent until on or about 1824 hours, 001106. A period of approximately 2 days.
Award: Forfeiture of $200 per month for 1 month (suspended for 6 months), restriction and extra duty for 14 days (suspended for 6 months). No indication of appeal in the record.
010109:  Forfeiture of pay and restriction awarded at NJP on 001122 vacated due to continued misconduct.

010125:  Retention Warning: Advised of deficiency (Article 86 x 2 – unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
010125:  NJP for violation of UCMJ, Article 86: In that Fireman J_ R_, U.S. Navy, Service School Command, Great Lakes, Illinois, on active duty, did, on or about 0600 hours, 001211, without authority, absent himself from his organization to wit: Service School Command, Great Lakes, Illinois, and did remain so absent until on or about 2230, 010109. A period of approximately 29 days.
         Award: Forfeiture of $584 per month for 2 months (suspended for 6 months), restriction and extra duty for 30 days, reduction to next inferior pay-grade (suspended for 6 months). No indication of appeal in the record.
010129:  NAVDRUGLAB, GLAKES, IL, reported Applicant’s urine sample, received 010110, tested positive for THC.
010202:  NJP for violation of UCMJ, Article 112a: Wrongfully use marijuana.
         Award: Forfeiture of $585 per month for 2 months, restriction and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.
010206:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct drug abuse and misconduct pattern of misconduct.

010206:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

010306:  Command DAPA medical evaluation: The applicant does not appear to meet DSM-IV diagnostic criteria for Alcohol Dependence or Alcohol Abuse at this time. Does not meet DSM-IV diagnostic criteria for Cannabis Dependence or Abuse.
010316   An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse and misconduct due to a pattern of misconduct, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.
010409:  Commanding Officer, Service School Command, Great Lakes recommended discharge under other than honorable conditions by reason of misconduct pattern of misconduct and misconduct drug abuse. Commanding Officer’s comments: “Based on a review of all documentation applicable in this case, I find no potential for further naval service. I recommend member be separated with a discharge characterized as Other Than Honorable.”

010411:  Commander, Naval Training Center, Great Lakes authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20010521 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of under other than honorable conditions. 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 (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

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 three nonjudicial punishment proceedings for violations of Articles 86 and 112a of the UCMJ. The Applicant lost 31 days due to unauthorized absence with one of the Applicant’s unauthorized absence periods totaling 29 days. The Applicant’s suspended punishment of 20001122 was vacated on 20010109 due to the Applicant’s continued misconduct. The Applicant’s conduct is considered a violation of the special consideration required for the Applicant’s enlistment; an enlistment that required waivers for possession of marijuana and petty theft. 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 that he was not allowed to visit a sick family member and he, therefore, became a “rebel” so that he could go home. While the Applicant may feel that his family situation was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The Board found the Applicant’s claim of a family obligation did not mitigate the Applicant’s pattern of misconduct and drug abuse. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The Applicant requests a change in narrative reason to “General/under honorable conditions.” For the edification of the Applicant, “General (Under Honorable Conditions)” is a characterization of service, not a narrative reason for separation. However, the Board did consider the Applicant’s request to change his narrative reason. The Board found the Applicant was multiple processed for separation by reason of misconduct due to drug abuse and by reason of misconduct due to a pattern of misconduct. The separation authority determined that a pattern of misconduct most clearly described the reason for the Applicant’s discharge. To change the Narrative Reason Separation would be inappropriate. Relief 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 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 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 post-service documentation for the Board to consider. 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), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .



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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