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NAVY | DRB | 2005_Navy | ND0500864
Original file (ND0500864.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-AR, USN
Docket No. ND05-00864

Applicant’s Request
The application for discharge review was received on 20050426. The Applicant requests his Discharge Characterization of Service received at the time of discharge changed to honorable. 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 20050819. 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 by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 The Applicant submitted no issues.


Documentation
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)     19960729 – 19961014     
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19961015             Date of Discharge: 19980218

 Length of Service (years, months, days):

         Active: 01 04 04
         Inactive: None

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

 Age at Entry: 19

 Years Contracted: 4

Education Level: 12                                 AFQT: 49

 Highest Rate: AA

 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) : Armed Forces Expeditionary Medal

 * Not Available


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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-142.
Chronological Listing of Significant Service Events :

960724:  Applicant admitted to prior use of marijuana when he enlisted into the Navy.
970616:  Applicant to unauthorized absence, 0700, returned 0730 (place of duty).
970808:  Applicant to unauthorized absence, 0630 returned 0730 (place of duty).
970910:  NJP for violation of UCMJ, Article 112a: Wrongfully use marijuana.
 Award: Forfeiture of $450.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-1. No indication of appeal in the record.
970919:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense (Article 112a).

970919:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
971201:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of serious offenses and misconduct due to drug abuse, that such misconduct warranted separation, and recommended discharge with under other than honorable conditions.
980107:  Commanding Officer, USS THEODORE ROOSEVELT (CVN-71), recommended to Commander, Carrier Group EIGHT, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense (Article 112a). Commanding Officer’s comments: “The Administrative Board found that AR H_ (Applicant) did commit misconduct due to drug abuse and misconduct due to commission of a serious offense. AR H_ (Applicant) has no potential for further naval service. I concur with the Board’s findings and recommendation that he be separated and that the separation be characterized as other than honorable.”

980130:  Commanding Officer, Carrier Group Eight authorized the Applicant's discharge under other than honorable conditions by reason of commission of a serious offense.

980218:  Applicant was discharged in absentia.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19980218 by reason of misconduct due to commission of a serious offense (A) with a service characterization of under other than honorable conditions. After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).

Issue: Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. After a thorough review of Applicant’s case the Board discovered no impropriety or inequity. When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance, it is appropriate to characterize that service as honorable. A 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. Certain serious offenses warrant separation from naval service in order to maintain proper order and discipline. The Applicant’s service was marred by nonjudicial punishment (NJP) for violation of UCMJ Article 112a (wrongful use of a controlled substance) a serious offense, thus substantiating the misconduct for which he was separated. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls short of that required for an upgrade in the characterization of service. Relief is not warranted.

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, and certification of non-involvement with civil authorities. The Applicant has not provided documentation for the Board to consider.

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 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE .
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 .

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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