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NAVY | DRB | 2006_Navy | ND0600126
Original file (ND0600126.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-SR, USN
Docket No. ND06-00126

Applicant’s Request
The application for discharge review was received on 20051024. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The Applicant did not designate a representative on the DD Form 293.

 Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 200611 01 . 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

 Applicant’s issues, as stated on the application:

“ My discharge was improper because of an incorrect separation authority .”
 “My discharge was improper due to the fact that I did not receive an Administrative
Board and received an OTH. ”
“My post service record includes no drug use, continuous employment, excellent physical
health, and a psychological and drug screening by a professional.”

 Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant’s mother T_ Y_ , dtd October 16, 2005 .
Character Reference Letter from J_ S_ , dtd October 14, 2005.
Letter from Applicant’s father D_ R. Y_ II , dtd October 16, 2005 .
The following additional documentations were submitted by the Applicant prior to his Personal Appearance H earing on November 01, 2006.
Applicants Statement of Issues
 Letter from Chief of Naval Education and Training to Commanding Officer, Naval
Technical Training Center, Corry Station authorizing administrative discharge ICO Scott
D. Yingling.
 Character Reference Letter from J_ S_, d td October 02, 2006.
Character Reference Letter from J_ S_, dtd October 12, 2006.
Character Reference Letter from J_ C_, dtd December 06, 2005.
 MILPERSMAN 1910-142 (Separation By Reason Of Misconduct - Commission of A
Serious Offense)
MILPERSMAN 1910-146 (Separation By Reason of Misconduct – Drug Abuse)
MILPERSMAN 1910-300 (Guidelines on Characterization of Service)
MILPERSMAN 1910-304 (Description of Characterization of Service)
MILPERSMAN 1910-704 (Determining Separation Authority)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19971122 - 19971221      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19971222             Date of Discharge: 19990120

 Length of Service (years, months, days):

         Active: 01 00 29 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 3 5 days
          Confinement:              none

 Age at Entry: 20

Years Contracted: 4 (24-month extension)

 Education Level: 13                                 AFQT: 92

 Highest Rate: SA

 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



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 :

980113:  Medical evaluation by NAVHOSP , ATF Pensacola FL. There is no DSM-IV pattern of Drug or ETOH Abuse or dependence.
          Assessment: No DSM-IV Drug abuse of dependence; no DVM-IV ETOH abuse or dependence.
         Plan: 1. P REVENT
2. A bstain from illicit drugs.
         
980825:  NJP for violation of UCMJ, Article 92: Disobeying a lawful order.
 Award: Forfeiture of $217.00 pay per month for 1 month, restriction and extra duty for 7 days, reduction to E-1. No indication of appeal in the record.
981020:  Applicant to unauthorized absence at 0700 on 981020.

 981124:  Applicant from unauthorized absence at 0225 on 981124 (35 days/returned).
981210:  NJP for violation of UCMJ, Article 86: Absence without leave.
 Violation of UCMJ, Article 112a: Wrongfully use a controlled substance to wit: steroids.
          Award: Forfeiture of $519.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
981222:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable by reason of misconduct commission of a serious offense and misconduct drug abuse.

981222:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
990108:  Commanding Officer, Naval Technical Training Center, Corry Station, Pensacola recommended discharge other than honorable by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse. Commanding Officer’s comments: “Seaman Recruit Y_ (Applicant) reported to my detachment at Lackland AFB, Texas on 5 July 1998. He appeared before me at mast on one occasion for a lengthy unauthorized absence and wrongful use of a controlled substance. Seaman Recruit Y_ (Applicant) has no potential for further naval service. Therefore, it is recommended that Seaman Recruit Y_ (Applicant) be separated from the naval service with an Other Than Honorable discharge.”

990108:  GCMCA, Chief of Naval Education and Training directed the Applicant's discharge with other than honorable by reason of misconduct commission of a serious offense.

 990120:  DD Form 214 : Applicant discharged under other than honorable conditions (misconduct).

050511:  NDRB documentary record review Docket Number ND05-00478 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19990120 by reason of misconduct due to commission of a serious offense (A and B) 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 (C and D).

The Applicant introduced 3 decisional issues for consideration by the Board.

The Applicant states “My discharge was improper because of an incorrect separation authority. ” The Applicant was dual processed for separation by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse. The Applicant’s misconduct, warranting separation for misconduct due to the commission of a serious offense, is clearly documented in the service record (A and B). The separation authority determined that misconduct due to the commission of a serious offense most clearly described the reason for discharge. Since no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged, a change would be inappropriate.

The Applicant claims his discharge was improper due to the fact that he did not receive an administrative board and received an OTH. Commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence. 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 action. 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 denied.

The Applicant states “My post service record includes no drug use, continous employment, excellent physical health, and a psychological and drug screening by a professional.” 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 service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct, which precipitated the discharge. Relief denied.

The following is provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Articles 86 (unauthorized absence more than 30 days), 92 (Disobeying a lawful order) and 112a (wrongful use, possession, etc. of controlled substances).

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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