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

ex-FCSA, USN
Docket No. ND03-01384

Applicant’s Request

The application for discharge review was received on 20030819.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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 20040617.  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, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  Upgrade Discharge.”

Documentation

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

Mental Health Report dated April 18, 2003 (2 pages)
Letter from Applicant father (Veteran Employment Representative) dated May 6, 2003 (3 pages)
Employment Reference Letter dated April 29, 2003
Letter from Applicant dated May 16, 2003 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960827 - 960828	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  960829		Date of Discharge:  990708

Length of Service (years, months, days):

	Active:    02  10  10
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  81

Highest Rate:  FC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert

Days of Unauthorized Absence:  97

*No Marks Available for review
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

980830:	AWOL from USS BATAAN.

981118:	Surrendered to TPU Norfolk, VA.  Member’s intentions to desert manifest.

981120:	Returned onboard USS BATAAN at 1505 from TPU Norfolk, VA.

981211:	Retention Warning:  Advised of deficiency (Summary Court Martial held 9 December 1998 for violation UCMJ Article 86-Unauthorized absences and Article 87-Missing ships movement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

981218:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: Unauthorized absence.  Charge II: violation of the UCMJ, Article 87: (2 Specifications), Missing ship’s movement.
	Finding:  to Charge I and the specification thereunder, guilty.  To Charge II and the specifications thereunder, guilty.
	Sentence:  CHL for 45 days, forfeiture of $758.00 pay per month for 1 month, restriction for 60 days.
	CA action 981218:  Approved findings and sentence.

990412:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 990325, tested positive for [THC].

990419:	AWOL from USS BATAAN.

990506:	Surrendered onboard TPU Norfolk, VA at 2155 hours.

990513:	Returned to USS BATAAN.
 
990521:	NJP for violation of UCMJ, Article 86: Unauthorized absence (17 days), violation of UCMJ, Article 87: (2 Specifications), Missing ship’s movement, violation of UCMJ, Article 112a: Wrongful use of controlled substance (marijuana).
Award:  Forfeiture of $537.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

990608:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to commission of a serious offense and misconduct to a pattern of misconduct. 

990608:	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.

990616:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use), misconduct due to commission of a serious offense and misconduct to a pattern of misconduct. 

990616:	NJP for violation of UCMJ, Article 117: Provoking speeches or gestures, violation of UCMJ, Article 134: Threat, communicating.
Award:  Forfeiture of $537.00 pay per month for 1 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

990623:	Commander, Amphibious Group TWO authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990708 under other than honorable conditions for misconduct due to drug abuse (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 did not introduce any decisional issues for the Board’s consideration.  A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service was marred by a summary court-martial for violation of the UCMJ, Articles 86 (unauthorized absence) and 87 (missing ship’s movement) and numerous award of nonjudicial punishments (NJP) for illegal drug use, unauthorized absence, communicating a threat, and provoking speeches.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflect his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for a honorable characterization of service.  An upgrade to honorable would be inappropriate.  Relief denied.  

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.  However, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, a drug free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.  At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty.  

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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until 26 March 2000, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

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 "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