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

 ex-MMFR, USN
Docket No. ND00-00495

Applicant’s Request

The application for discharge review, received 000307, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested 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 000928.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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, authority: NAVMILPERSMAN, Article 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. I (applicant), I served ten years in the U.S. Navy upon which I made E-5 petty officer 2nd class.  Throughout my 10 yrs. I went thru a painful divorce under which my ex-wife got pregnant by another man and I had a blood test which was negative.  The child, was not mine, so I was very bitter and became very depressed.  I never dealt with the situation so in my relationship with my now fiancé issues came up.  In June 1996 my son X_ M_ O_ was taken from our custody when he was taken because he was under weight, I had a hard times getting off from work my command even thought I was on shore duty complained about me getting off.  After the State of California took our son, I became terribly depressed.  I started using cocaine, I went UA and I became very addicted.  In March 1997 our son X_ choked on a peanut butter sandwich and died it's been 3 yrs now and we have two kids a son Q_ and a daughter P_, we are trying to rebuild our lives and move on I am clean and sober now and I have a full time job I have no intentions on ever using drugs again.  That's why I'm writing to whom it may concern about getting my discharge upgraded to Honorable.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

None

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:    USN 			861110 - 901009	HON
	Inactive:  USNR(DEP)		860903 - 861109	COG

Period of Service Under Review:

Date of Enlistment:  901010		Date of Discharge:  971003

Length of Service (years, months, days):

	Active:    06  11  24
	Inactive:  00  00  00

Age at Entry:  25			Years Contracted:  6

Education Level:  12			AFQT:  40

Highest Rate:  MM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.55 (9)	Behavior:  3.33 (9)	OTA:  3.67

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, SSDR (2)

Days of Unauthorized Absence:  256

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.  [Note BUPERSINST 1900.8 list the authority as 3630600 instead of 3630605]

Chronological Listing of Significant Service Events:

931222:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0730, 1Oct93 to 1805, 4Nov93 (34 days/surrendered).
	Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 45 days, reduction to MM3.  No indication of appeal in the record. 

940120:	Retention Warning:  Advised of deficiency (UA), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

941012:	NJP for violation of UCMJ, Article 92 (6 specifications): Failed to obey lawful order issued by CO, SIMA, NAVSTA, San Diego, CA.
	Award:  Forfeiture of $300 per month for 2 months, restriction and extra duty for 45 days, reduction to MMFN.  No indication of appeal in the record. 

950221:	Retention Warning:  Advised of deficiency (failed to obey lawful order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

97XX27:	Drug and Alcohol Abuse Report: Cocaine abuse, ashore off duty.  CAAC recommended Level III treatment.  Physician found applicant depended and recommended Level III treatment.  Commanding officer recommend Level III treatment.  Comments:  Member was a poor past and present performer.  No potential for further naval service.

970214:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (2 specifications):
	Specification 1: Unauthorized absence from 19Jul96 to 8Nov96 (112 days/surrendered).
	Specification 2: Unauthorized absence from 12Nov96 to 22Nov96 (10 days/surrendered).
	Findings:  to Charge I and specifications thereunder, guilty.  
	Sentence:  Forfeiture of $500.00 pay per month for 2 months, confinement for 2 months and reduction to MMFR.
	CA 970328:  Sentence approved and ordered executed.

970226:	Applicant to unauthorized absence 0730, 26Feb97.

970328:	Applicant declared a deserter.

970512:	Applicant from unauthorized absence 2138, 12May97 (75 days).

970512:	Applicant to unauthorized absence 2320, 12May97.

970607:	Applicant from unauthorized absence 1235, 7Jun97 (25 days/apprehended).

970612:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidence unauthorized absence from 19Jul96 to 8Nov96 and 12Nov96 to 22Nov96, 26Feb97 to 28Mar97 and 12May97 to 7Jun97 and failure to obey lawful order (4X) driving on base with a suspended driver's license as evidenced by Department of the Navy Desk Journal dated 2Sep94.

970612:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

970624:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of serious offenses (absent without leave (30 days or more). 

970710:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 971003 under other than honorable conditions for misconduct due to absent without leave - 30 days or more (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).

In the applicant’s issue 1, the Board found that the applicant went to NJP two times, had a Special Court martial for 2 specifications of unauthorized absence of 112 days and 10 days, and then again went UA for 100 days.  Although it is unfortunate that the applicant had some personal problems, the applicant presented no evidence, nor did the Board find any documentation in his record that he requested assistance through his chain of command.  The applicant’s service is accurately characterized as having been performed under other than honorable conditions.  No relief granted based on this issue.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 11 Dec 97, Article 3630605, 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 [e.g., 86, for unauthorized absence for a period in excess of 30 days] if adjudged at a Special or General Court-Martial.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023