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NAVY | DRB | 2005_Navy | ND0500876
Original file (ND0500876.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-AOAR, USN
Docket No. ND05-00876

Applicant’s Request
The application for discharge review was received on 20050426. 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 20050811. 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:

“My discharge was inequitable because it was based on an isolated incident in 30 months of service. I need help, at present time, I am disabled, and unable to work, or support myself, medical bills, and medicine, I am unable to pay for.”

 Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Request for medical information for the Arizona Department of Economic Security, dated March 23, 2004
Twenty-four pages of Applicant’s post-service medical records

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     900321 - 900927  ELS
                  USNR (DEP)      910708 - 910924  ELS
         Active: None

 Period of Service Under Review :
Date of Enlistment: 910925               Date of Discharge: 930218

 Length of Service (years, months, days):

         Active: 01 04 24
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 41

 Highest Rate: AOAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)             Behavior: 3.00 (1)                OTA : 3.20

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM with 1 Star

 Days of Unauthorized Absence: 31

 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 :

910927:  Applicant briefed on Navy's policy of Drug and Alcohol Abuse.
920921:  Applicant to unauthorized absence 0630, 920921.

 921021:  Applicant from unauthorized absence 2050, 921021 (31 days/surrendered). EAOS changed to 951025.
930114:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 0630, 920921 to 2050, 921021.
         Charge II: violation of the UCMJ, Article 112a:
         Specification: Wrongful use of a controlled substance.
         Charge III: violation of the UCMJ, Article 128:
         Specification: Assault on 921026.
          Finding: to Charge I, II, and III and the specifications thereunder, guilty.
          Sentence: Forfeiture of $542.00, confinement for 30 days, reduction to
E-1. CA action 930115: Sentence approved and ordered executed.

930114:  Applicant found fit for confinement.

930131:  Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse as evidenced by the summary court-martial documented in his service record. The characterization of service may be under other than honorable conditions.
930201:  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.
930205:  Drug dependency evaluation. Applicant found not dependent on marijuana.
930210:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse.

930218:  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 19930218 under other than honorable conditions for misconduct due to commission of a serious offense (A and 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).

The Applicant contends that his discharge was inequitable because it was based on one incident in 30 months of service. The NDRB advises the Applicant, that despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline. The Applicant's misconduct is documented in his service record, which is marred by a Summary Court-Martial on 19930114 for:

•         Violation of UCMJ, Article 86 : Unauthorized absence from 920921 to 921021.
•         Violation of UCMJ, Article 112a: Wrongful use of a controlled substance
•         Violation of UCMJ, Article 128: Assault on 921026
Each of these violations of the UCMJ are considered serious offenses. Further there is credible evidence in the record that the Applicant used drugs. Wrongful use of a controlled substance, even on one occasion required mandatory separation. After reviewing the Applicant's entire service record, the Board found that the characterization of the Applicant's discharge as other than honorable was proper and equitable. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed serious offenses and that separation from the Naval service was appropriate. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant was provided the opportunity to present his case before an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification. Relief is not warranted.

The following is provided for the edification of the Applicant. To permit relief, an impropriety or inequity must be found to have existed during the period of enlistment under review. There was nothing in the record, nor did the Applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge. Relief is not warranted.

The Applicant contends, “I am disabled, unemployed, and unable to pay my medical expenses”. The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.
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), 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 86, for unauthorized absence for a period in excess of 30 days and Article 112a, wrongful use of a controlled substance, 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 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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