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

FOR OFFICIAL USE ONLY
 
 ex-BMSN, USN
Docket No. ND05-00869 

Applicant’s Request

The application for discharge review was received on 20050426.  The Applicant requests the characterization of service received at the time of discharge be changed to general under honorable conditions.  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 20050811.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 “I KNOW I MADE A MISTAKE I WISH I COULD CHANGE WHAT I DID BUT I CAN’T.  I KNOW ONE THING I LOVE THIS COUNTRY AND WOULD GIVE MY LIFE FOR IT.  I BELIEVE EVERY BODY SHOULD GET A SECOND CHANCE.  I WISH I COULD.  I KNOW I HAVE NOT BEEN IN ANY TROUBLE AT ALL.  I AM TRYING TO RAISE MY KIDS THE RIGHT WAY.  I GIVE MY TIME TO THE CHURCH AND COACH BASEBALL. I TRY TO HELP AS MANY PEOPLE IN MY AREA I CAN.”

Documentation

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

No additional documentation

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR(DEP)	830711 - 840709	COG
	Active:    USN 		840710 - 880420	HON(Rel ACDU)
	Inactive:  USNR		880421 - 890404	HON
	Inactive:  USNR(DEP)	890405 - 890419	COG

Period of Service Under Review:

Date of Enlistment:  890420		Date of Discharge:  940207

Length of Service (years, months, days):

	Active:    04  09  18 (Not to include lost time)
	Inactive:  None

Age at Entry:  23			Years Contracted:  6 

Education Level:  12			AFQT:  63

Highest Rate:  BM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (6)		Behavior:  4.0 (6)		OTA:  4.00

Military Decorations:  None

Unit/Campaign/Service Awards:  GCW (2), CPM, NDSM, SSDR (2), SASM WITH BRONZE STAR

Days of Unauthorized Absence:  73

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

890420:	Applicant reenlisted into the Navy on this date for six years.

890420:	Applicant signed Drug and Alcohol Abuse Statement of Understanding

930823:	UA from USS GARY (FFG 51) at San Diego, CA this date.

930930:	Report of Declaration of Deserter.  Applicant declared a deserter on 930922 having been an unauthorized absentee since 0700, 930823 from USS GARY.

931104:	Surrendered at COMDESRON 33 San Diego TRF to TPU San Diego, CA for processing.

931108:	Report of Return of Deserter.  Applicant surrendered to military authorities on 931104 (1154) at TPU, Naval Station San Diego, CA.  Retained onboard TPU, San Diego pending return to PSD, San Diego, CA.

931116:	TPU, San Diego, CA. advised USS GARY and BUPERS that member, while pending return to USS GRAY, self-admitted to using drugs.  Requested to remain on board for disciplinary action and administration separation.
	
931122:	USS GARY requests permission to transfer Applicant to TPU San Diego, CA.

931201:	BUPERS authorized USS GARY to transfer Applicant to TPU San Diego, CA, for separation processing.

940107:	NJP for violation of UCMJ, Article 86(2 specs):
Specification:  In that BM2 T_ S. M_ (Applicant), USN, TPU, NAVVSTA San Diego, CA, on active duty, did, on or about 930824 and, without authority, absent himself from his unit, to wit:  USS GARY, located at NAVSTA, San Diego, CA, and did remain so absent until on or about 931104, a period of 73 days.
Specification 2:  On or about 0700 931114, without authority, absent himself from his unit to wit: TPU NAVSTA San Diego, Ca and did remain so absent until on or about 0600, 931115 a period of 23 hours.
Violation of UCMJ, Article 112a:
Specification 1:  In that BM2 T_ S. M_ (Applicant), USN, TPU, NAVSTA, San Diego, CA, on active duty, did, at or near San Diego, CA, on or about 931115 used AMP/Methamphetamines.
	Award: Forfeiture of $644.00 pay per month for 1 month, restriction and extra duty for 30 days, reduction to E-4.  No indication of appeal in the record. 

940112:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, to wit: unauthorized absence in excess of thirty day (73 days) and misconduct due to drug abuse as evidence by the wrongful use of amphetamine/methamphetamine. If separation is approved, the characterization of your service may be other than honorable.

940112:	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. Applicant did not object to this separation.

940113:	Commanding Officer, TPU, San Diego, CA recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, to wit: unauthorized absence in excess of 30 days (73 days) and misconduct due to drug abuse as evidenced by the wrongful use of amphetamine/methamphetamine.  Commanding Officer’s comments: “BM3 M_ (Applicant) lengthy period of unauthorized absence and wrongful use amphetamine/methamphetamine precludes his further retention in the naval service.  Based on the information contained in paras 1 through 13.  I recommend that BM3 M_ (Applicant) be separated with an Other Than Honorable discharge by reason of misconduct”.

940119:	Commanding Officer, TPU, San Diego, CA forwarded to BUPERS, discharge documentation.

940127:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct, and directed administrative reduction to E-3 upon separation.  Member was not available for signature. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940207 under other than honorable conditions for misconduct due to commission of a serious offense (A and 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 contends that he made a mistake, is living a responsible life post service, and would like a second chance. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by one nonjudicial punishment for violations of:

•	UCMJ Article 86: Unauthorized Absence (2 specs): 

o	Specification1: UA from USS GARY (930824-931104) A period of 73 days.
o	Specification 2: UA from USS GARY (931114-931115) A period of 23 hours.

•	UCMJ Article 112a (931115): Wrongful use of a controlled substance (AMP/Methamphetamines)

Violations of Articles 86  (UA for a period in excess of 30 days) and 112a are considered serious offenses and typically warrant a punitive discharge if adjudged at a special or general court-martial. The Applicant was UA for 73 days and upon return self admitted to using controlled substances, thereby substantiating the misconduct for which he was discharged. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have existed during the period of enlistment in question.  No impropriety or inequity occurred during the Applicant’s enlistment.  Additionally, 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 post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation for the Board to consider.  

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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT. 

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86, for unauthorized absence for a period in excess of 30 days and Article 112a, wrongful use of a controlled substance if adjudged at a Special or General Court-Martial.

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