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

 ex-SR, USNR
Docket No. ND04-01256

Applicant’s Request

The application for discharge review was received on 20040806.  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 20041112.  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:

1. “I believe the charges against me were never adiqutly proven. I did not test positive on any drug screening the entire time of my enlistment.  My confession was not signed of my own free will, I was threatened with imprisonment if I did not sign.”

Documentation

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

Character/Employment Reference Letter, dated July 22, 2004
Copy of DD From 214

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890524		Date of Discharge:  920227

Length of Service (years, months, days):

	Active:    02  07  08
	Inactive:  00 01  27

Age at Entry:  17 (Parental Consent)	Years Contracted:  8

Education Level:  12			AFQT:  47

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (3)	Behavior:  2.66 (3)		OTA:  3.26

Military Decorations:  None

Unit/Campaign/Service Awards:  NER, CAR, NUC, SSDR, NDSM, SASM(w/2 Bronze Stars)

Days of Unauthorized Absence:  None

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:

890720:	Ordered to active duty for 36 months under the Active Mariner program.

890724:	Applicant briefed on Navy’s policy of drug and alcohol abuse.

891130:	NJP for violation of UCMJ, Article 121: Wrongfully steal a walkman radio of a value of about $158.00, the property of the Navy Exchange, Long Beach, CA.
	Award:  Forfeiture of $250.00 pay per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

910103:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful general regulation on or about 901223, by wrongfully lighting candles below turret two powder flats.
	Award:  Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 30 days, reduction to E-1.  No indication of appeal in the record.

920130:	Drug and Alcohol Abuse examination conducted by Missouri Medical Officer found Applicant not physiologically dependent on alcohol, or drugs, drug use was recreational. 

920131:	NJP for violation of UCMJ, Article 112a: (2 Specifications), wrongful use of a controlled substance.
	Award:  Forfeiture of $350.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

920131:	Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to the commission of serious offense’s, to wit, Failure to obey a lawful general regulation by lighting a candle in the powder flats of turret II on 910103 and larceny on or about 891130; and misconduct due to drug abuse and drug trafficking as evidenced by nonjudicial punishment held on 920131.

920131:	Applicant advised of his 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.

920208:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and trafficking as evidenced by nonjudicial punishment on 920131 and misconduct due to commission of serious offenses, to wit: Failure to obey a lawful general regulation by lighting a candle in the powder flats of turret II on 910103 and larceny on or about 891130. 

920221:	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 19920227 under other than honorable conditions for misconduct due to the 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).

Issue 1:  The Applicant contends the charges against him were never proven and that he was forced to sign a confession detailing his illicit drug use, against his will.  Contrary to his claims, there was nothing in the records, nor did the Applicant provide any documentation, to refute the presumption that he was threatened with imprisonment or that he signed his confession not under his own free will.  Relief denied.

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 award of nonjudicial punishment (NJP) on three occasions for violations of Articles 92, 112a, and 121 of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  Relief denied.

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.  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.  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 “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:

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