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

ex-SA, USNR 
Docket No. ND01-00060

Applicant’s Request

The application for discharge review, received 001017, 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 010808.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Due to circumstances, I felt I was falsely accused (see attachments), and I also felt I didn't have a fair representation/trial. (see also attachments)

Documentation

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

Copy of fax sheet dated May 13, 1999 (2 pages)
Copy of Statement of Accused/Respondent
Statement from applicant, undated
Copy of Letter of Appreciation dated April 8, 1998
Copy of Letter of Appreciation dated November 7, 1997
Copy of letter from commanding officer to applicant re completion of Level I dated February 19, 1997
Letter to applicant dated March 18, 1998
Copy of receipt of prisoner or detained person dated May 12, 1998
Copy of acknowledgement and waiver of rights dated May 12, 1998
Copy of voluntary statement dated May 12, 1998
Copy of voluntary statement dated May 12, 1998
Copy of incident/complaint report
Copy of applicant's voluntary statement dated May 12, 1998
Copy of applicant's voluntary statement dated May 12, 1998
Copy of permissive authorization for search and seizure dated May 12, 1998
Copy of evidence/property custody report dated May 12, 1998 (2 pages)
Copy of incident/complaint report
Statement from applicant, undated
Copy of voluntary statement dated June 3, 1998
Copy of report of offense dated June 17, 1998
Copy of page 2 of US Naval Criminal Investigative service report
Copy of USS CARL VINSON desk journal dated June 29, 1998
Copy of page of US Naval Criminal Investigative service report
Copy of acknowledgement and waiver of rights dated June 29, 1998
Copy of United States Treasury check in the amount of $688.65
Copy of two ATM Cards
Copy of signature page of denial of appeal from nonjudicial punishment
Copy of US Naval Criminal Investigative service report dated June 30, 1998 (3 pages)
Letter from applicant's mother
Copy of details of offenses
Copy of NAVPERS 1626/7, Report and Disposition of Offenses (2 copies)
Copy of restriction orders dated July 25, 1998 (2 copies)
Copy of Captain's Mast accused's acknowledgement of appeal rights dated July 25, 1998
Copy of Extra Duty Orders dated July 25, 1998
Copy of denial of nonjudicial punishment appeal dated August 19, 1998
Copy of applicant's appeal of nonjudicial punishment, undated (6 pages)
Copy of page 1 of US Naval Criminal Investigative service report dated June 30, 1998
Copy of statement from applicant, undated
Copy of first endorsement forwarding appeal of nonjudicial punishment dated August 11, 1998
Copy of third endorsement dated August 20, 1998
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	950915 - 951010	COG

Period of Service Under Review:

Date of Enlistment:  951011		Date of Discharge:  980929

Length of Service (years, months, days):

	Active:    02  11  19
	Inactive:  None

Age at Entry:  20			Years Contracted:  8

Education Level:  12			AFQT:  37

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF*		OTA:  NMF*

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM, SSDR, NER, MUC, Letter of Appreciation (2)

Days of Unauthorized Absence:  None

*No marks found in service record.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

980528:	NAVDRUGLAB, San Diego, CA reports 46 urine samples received 980526 tested negative.

980629:	US Naval Criminal Investigative Service report found in case folder.

980725:	NJP for violation of UCMJ, Article 112A (2 specs): (1) Wrongfully use marijuana on 12May98, (2) Wrongfully use steroids on 12May98, violation of UCMJ, Article 91: Disobey a lawful order given by a superior petty officer on 17Jun98, to wit: to sweep the XO's passageway.  
	Award: Forfeiture of $519 per month for 2 months, restriction and extra duty for 45 days, reduction to SA.  Appealed undated.  Appeal denied 980819.

980826:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

980828:	NAVDRUGLAB, San Diego, CA reports 180 urine samples received 980826 tested negative.

980828:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

980925:	NJP for violation of UCMJ, Article 92: Wrongful possession of hypodermic needles.  Violation of UCMJ Article 121: Stealing property of total value of $1000.00.  
Award:  Forfeiture of $519 per month for 2 months.  Bread and water for 3 days.

980926:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  

980927:	COMCARGRU THREE directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

Administrative discharge board missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980929 under other than honorable conditions for misconduct due to commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (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’s issue states:  “Due to circumstances, I felt I was falsely accused (see attachments), and I also felt I didn't have a fair representation/trial. (see also attachments).”  The applicant’s issue is without merit.  The record shows the applicant was found guilty at NJP on two separate occasions of multiple violations of UCMJ Articles including:  Articles 91 and 92 and 112A (2 Specs of wrongful use of controlled substances) and 121 Larceny (value of $1000.00).  The applicant’s documentation did not demonstrate an impropriety or inequity in the discharge awarded.  Relief is denied.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, may be considered by the NDRB.  The applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record.  Relief is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is recommended 

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

C.  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.

D.  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 "afls10.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