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


FOR OFFICIAL USE ONLY


                                      ex-OS3, USN
                                 Docket No. ND06-00386

Applicant’s Request

The application for discharge review was received on 20060110. The Applicant requests
the Discharge 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 designated Civilian Counsel as the representative on the
DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061108.
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 in lieu of a trial by court-martial.
Docket No. ND06-00386


            PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the attached documents:

Issues submitted by Applicant’s counsel/representative (Civilian Counsel):

                      “PETITION FOR REVIEW BEFORE
                    THE NAVY DISCHARGE REVIEW BOARD

The Petitioner, C_ L. P_ (Applicant), by counsel, hereby submits this petition for review
of discharge from the United States Navy, pursuant to Title 10, U.S. Code, Section 1553,
and hereby respectfully requests the following relief:

That the Petitioner be granted a General Discharge, under honorable conditions.

The following is presented for consideration.

                                PERSONAL HISTORY

The Petitioner is 26 years of age, born on May 4, 1978, in Tahoma Park, Maryland. He is
the son of T_ E. and L_ J. P_ of Glen Burnie, Maryland. The Petitioner is their only
child. The Petitioner graduated from Glen Burnie Senior High School, Glen Burnie,
Maryland. He is single.

                                  RELEVANT FACTS

The Petitioner, C_ L. P_ (Applicant), commenced active duty with the United States
Navy on 24 September 1996, for a period of 4 years.1 His enlistment progressed normally
and without incident.

On 2 August 1999, while assigned to the USS ELLIOT (DD 967), San Diego, California,
the Petitioner provided a urine sample for a command urinalysis.2

On 6 August 1999, the Petitioner began a period of unauthorized absence, missing the
movement of the USS ELLIOT (DD 967), from San Diego, California.3

On 12 August 1999, the Navy Drug Screening Laboratory (NDSL), San Diego,
California, reported the urine sample provided by the Petitioner was tested, and
confirmed the presence of THC.4

1
  See Attachment A (DD Form 4-Enlistment/Reenlistment Document)
2
  See Attachment B (DD Form 2624-Specimen Custody Document)
3
  See Attachment C (NAVPERS 1070/613-Administrative Remarks)
4
  See Attachment D (NAVDRUGLAB SAN DIEGO CA MSG 121528Z AUG 99)


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Docket No. ND06-00386



On 4 September 1999, the Petitioner surrendered on board USS ELLIOT (DD 967),
having been absent for a period of 29 days.5

On 7 September 1999, the Petitioner was formally accused of violations of the Uniform
Code of Military Justice (UCMJ), Article 86, unauthorized absence; Article 87, missing
movement; and Article ll2a, wrongful use of THC (sic).6

Appearing before Commanding Officer, USS ELLIOT (DD 967), for Nonjudicial
Punishment, on 7 September 1999, the Petitioner was awarded 45 days restriction, 45
days extra duty, forfeiture of 1/2 month’s pay per month for 2 months, and reduction in
rate to the next inferior pay grade.7

The Commanding Officer, USS ELLIOT (DD 967), also initiated discharge proceedings
against the Petitioner, which the Petitioner acknowledged on 7 September 1999.8

On 13 September 1999, the Petitioner absented himself from the ship, at San Diego,
California.9

Believing the Petitioner’s intent was to remain away from the military permanently,
shortly after the commencement of the absence, the Commanding Officer issued a
Deserter/Absentee Wanted by the Armed Forces form on 15 September l999.10

On 31 October 1999, the Commanding Officer declared the Petitioner a deserter from the
U.S. Navy.11

On 24 October 2000, the Petitioner surrendered to military authorities at Transient
personnel Unit, Naval Station Norfolk, Virginia, and on 17 November 2000, a charge of
Article 86, UCMJ, unauthorized absence, from 13 September 1999 until 24 October
2000, was preferred.12

On 29 November 2000, submitted a request for administrative discharge in lieu of trial by
court-martial.13 The Separation Authority subsequently approved the request, and the
Petitioner was separated from the U.S. Navy on 8 December 2000, with a
characterization of service as Under Other than Honorable Conditions.14


5
  See Attachment E (NAVPERS 1070/613-Administrative Remarks)
6
  See Attachment F (NAVPERS 1626/7-Report & Disposition of Offenses - Front)
7
  See Attachment G (NAVPERS 1626/7-Report & Disposition of Offenses — Back)
8
  See Attachment H (Administrative Separation Processing Notice)
9
  See Attachment I (NAVPERS 1070/613-Administrative Remarks)
10
   See Attachment J (DD Form 553_Deserter/Absentee Wanted by the Armed Forces)
11
   See Attachment K (USS ELLIOT MSG 310430Z OCT 99)
12
   See Attachment L (DD Form 458-Charge Sheet)
13
   See Attachment M (Petitioner’s request dtd 29 Nov 00)
14
   See Attachment N (DD Form 214-Certificate of Discharge from Active Duty)


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Docket No. ND06-00386


                                   MILITARY HISTORY

A. The petitioner was assigned to the following units while in the U.S. Navy:15

960924 - 961130:        Navy Recruit Training Command
                        Great Lakes, IL (Recruit Training)

961227 - 970314:        OS Class “A” School (FCTCLANT)
                        Dam Neck, VA (Student)

970324 - 001023:        USS ELLIOT (DD 967)
                        San Diego, CA (Duty)

001024 — 001208:        Transient personnel Unit
                        Norfolk, VA (Transient)

B. The Petitioner also received the following awards and decorations:16

Food Service Attendant of the Month Award, for August, 1997.

Letter of Appreciation of 9/11/97, for outstanding performance during Seattle Seafair
1997;

Imperium Neptuni Regis (Shellback) Certificate of 10/27/98;

Letter of Commendation for the period 9/98 - 10/98, for outstanding performance of
duties while serving as Quarterdeck Preservation Team Member on board USS ELLIOT
(DD 967);

Western Pacific (WESTPAC) Deployment Certificate for the period 6/17/98 - 12/7/98;
and

Letter of Commendation for the period 6/98 - 12/98, for outstanding performance as
Combat Information Center Watch Stander on board USS ELLIOT (DD 967); and

Petty Officer Third Class Frocking letter of 1/21/99.

C. The Petitioner’s evaluation reports indicate:17

1. 97MAR15 - 97JUL15. Periodic/Regular Report. CIC Watchstander. 3.0 Individual
Trait Average - Promotable.


15
   See Attachment 0 (NAVPERS 1070/605-History of Assignments)
16
   See Attachment P (Letters of Appreciation & Commendation, and Citations)
17
   See Attachment Q (NAVPERS 1616/26-Evaluation Reports & Counseling Records)


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Docket No. ND06-00386

2. 97JUL16 - 98JAN15. Periodic/Regular Report. CIC Watchstander. 3.0 Individual
Trait Average - Promotable.

3. 98JAN16 - 98JUL15. Periodic/Regular Report. CIC Watchstander. 3.0 Individual
Trait Average - Must Promote.

4. 98JUL16 - 99JUN15. Periodic/Regular Report. CIC Watchstander. 4.0 Individual
Trait Average - Promotable. (Front Page of NAVPERS 1616/26 missing/not provided.)

                                      ARGUMENT

This application is submitted for equity review/consideration, 32 CFR 70.9(c) (3).

From the time of his active duty enlistment on September 24, 1996, until his unauthorized
absence on August 6, 1999, the Petitioner served honorably, a period of about 3 years.

As evidenced by his performance evaluations, the Petitioner established a reputation for
quality work on all assigned tasks. He was recognized by his superiors as an outstanding
Sailor and provided excellent support as a member of the Navigation team.

The Petitioner was cited as an excellent Operations Specialist who demonstrated superb
initiative and ability, and was an exceptional asset to the O1 Division and the Operations
Department. The Petitioner was highly recommended for advancement and assignments
to only the most challenging at-sea Operation Specialist billets.

The Petitioner was on the path to success in the Navy, unfortunately, he made the unwise
decision to use a controlled substance. Realizing his mistake, a sense of doom and
desperation prevailed leading to his unauthorized absence. The Petitioner knew he had to
resolve these disciplinary matters and be accountable for his actions. He surrendered on
board USS ELLIOT (DD 967) after being absent for 29 days.

The Petitioner appeared before his Commanding Officer on September 7, 1999.
Subsequent to receiving his punishment at the Nonjudicial Punishment proceedings, the
Petitioner was advised that he was being considered for administrative separation. At this
point, he believed he could not salvage his enlistment, and that his naval service would
soon end.

Believing he could end his military service on his own terms, the Petitioner absented
himself on September 13, 1999. He returned to his home in Maryland. The Petitioner
ultimately resolved to correct his past and surrendered at the Transient Personnel Unit,
Norfolk, Virginia, on October 24, 2000. The Petitioner found he was now facing serious
consequences. Court-martial proceedings were initiated by the command. As
preparations for trial began, the Petitioner submitted, through counsel, a request for an
other than honorable discharge in lieu of trial by court-martial. He was advised this was




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Docket No. ND06-00386

the best possible outcome he could hope for without suffering a federal conviction. His
request was approved, and he was discharged on December 8, 2000.

Approximately 5 years have passed since the Petitioner’s discharge. His life and new
profession encompass far more than the issues subject to his discharge — those issues do
not totally reflect the outstanding Sailor he was before his disciplinary problems, and they
do not reflect the person he has since become. He has attempted to demonstrate that
through the character letters, evaluations, and commendations submitted with this
application.

The Petitioner fully acknowledges and takes responsibility for his actions. He has taken
positive steps in his personal and professional life, and desires to do more, and do better,
which an other than honorable discharge will not allow.

                                    CURRENT INFORMATION

The Petitioner currently resides in Mt. Airy, Maryland. He is employed by Carroll
County, Maryland, as a mechanic.18 He has been with Carroll County, Maryland, for 4
years. Within the first 2 years of his employment, he was promoted to Mechanic II. He
was recently moved to a position at the Wastewater Treatment Plant Operations, holding
two State licenses in wastewater collections and treatment. Along with his mechanic
responsibilities, the Petitioner performs laboratory work as well.

The Petitioner has no criminal record since leaving the U.S. Navy in December, 2000.

                                                 CLOSING

The Petitioner is very remorseful for his past behavior. He acknowledges the negative
aspects of his military service - he knows he was wrong, but the Petitioner’s service is not
without merit, he made significant contributions and accomplishments. The Petitioner
requests the board consider these milestones, as well as letters of good character
submitted on his behalf.19 His entire enlistment should not be judged and characterized
as other than honorable.

The Petitioner respectfully requests he be granted the relief sought herein.

                               SUPPORTING DOCUMENTATION

Attachment A (DD Form 4-Enlistment/Reenlistment Document)
Attachment B (DD Form 2624-Specimen Custody Document)
Attachment C (NAVPERS 1070/613-Administrative Remarks)
Attachment D (NAVDRUGLAB SAN DIEGO CA MSG 12l528Z AUG 99)
Attachment E (NAVPERS 1070/613-Administrative Remarks)
18
     See Attachment R (Performance Appraisals)
19
     See Attachment S (Character Statements)


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Docket No. ND06-00386

Attachment F (NAVPERS 1626/7-Report & Dispo of Offenses - Front)
Attachment G (NAVPERS 1626/7-Report & Dispo of Offenses - Back)
Attachment H (Administrative Separation Processing Notice)
Attachment I (NAVPERS 1070/613-Administrative Remarks)
Attachment J (DD Form 553-Deserter/Absentee Wanted by the AF)
Attachment K (USS ELLIOT MSG 3l0430Z OCT 99)
Attachment L (DD Form 458-Charge Sheet)
Attachment M (Petitioner’s request dtd 29 Nov 00)
Attachment N (DD Form 214-Certificate of Discharge from AD)
Attachment O (NAVPERS 1070/605-History of Assignments)
Attachment P (Letters of App & Commendation, & Citations)
Attachment Q (NAVPERS l6l6/26-Eval Reports & Counseling Records)
Attachment R (Performance Appraisals)
Attachment S (Character Statements)

                                     ATTESTATION

I, C_ L. P_ (Applicant), hereby state under oath that:

The factual allegations contained in this petition are true and correct to the best of my
knowledge and belief.

(signed)
C_ L. P_

[Notary seal]

(signed)
for D_ P. P_, Esquire (Applicant Representative)
M_ & Associates
(address omitted)
(phone and fax numbers omitted)”

Applicant’s Remarks: See attached petition.

Documentation

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

    Applicant’s DD Form 214
    Petition from M_ & Associates Attorneys and Counselor at Law, dtd November 28,
    2005 (8 pgs).
    Pages from Applicant’s Service Record (39 pgs)
    Performance Standards, dtd July 27, 2005 (4 pgs)


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Docket No. ND06-00386

   Mid-Year Employee/Supervisor Evaluation Form, dtd July 28, 2005
   Employee Evaluation Form, dtd July 28, 2004 (2 pgs)
   Employee Evaluation Form, dtd February 11, 2004 (3 pgs)
   Performance Standards, dtd February 5, 2004
   Performance Standards, dtd January 10, 2002 (2 pgs)
   Character Statement from D_ B_, Jr., dtd October 10, 2003
   Character Statement from E_ J_, Sr., dtd October 1, 2003
   Character Statement from J_ O_, dtd October 1, 2003




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Docket No. ND06-00386


                        PART II - SUMMARY OF SERVICE

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

       Inactive: USNR (DEP)          19960427 - 19960923               COG
       Active: None

Period of Service Under Review:

Date of Enlistment: 19960924                 Date of Discharge: 20001208

Length of Service (years, months, days):

       Active: 04 02 15 (Does not exclude lost time.)
       Inactive: None

Time Lost During This Period (days):

       Unauthorized absence: 435 days
       Confinement:          None

Age at Entry: 18

Years Contracted: 4

Education Level: 12                          AFQT: 43

Highest Rate: OS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.5 (4)                 Behavior: 3.3 (4)            OTA: 3.25

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or
Authorized, (as listed on the DD Form 214): None




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Docket No. ND06-00386



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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY
COURT MARTIAL, authority: MILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events:

960427:       Program waiver granted by CO NRD Philadelphia for marijuana use.

990806:       Applicant to unauthorized absence at 0530.

990806:       Applicant missed ship’s movement.

990812:       NAVDRUGLAB, SAN DIEGO, CA reported Applicant’s urine sample,
              received 990805, tested positive for THC.
              [Extracted from Applicant’s supporting documents.]

990904:       Applicant from unauthorized absence at 0654 (29 days/surrendered).

990907:       NJP for violation of UCMJ, Article 86: Unauthorized absence from 0530,
              990806 to on or about 0654, 990904, a period of about 29 days.
              Violation of UCMJ, Article 87: Miss movement of the USS Elliot (DD-
              967) on or about 0700, 990806.
              Violation of UCMJ, Article 112a: Wrongfully use THC
              (TETRAHYDROCANNABINOL) a schedule I controlled substance on or
              about 990715.
              Award: Forfeiture of $589.00 pay per month for 2 months, 45 days
              restriction to USS ELLIOT, extra duty for 45 days, reduction to E-3. No
              indication of appeal in the record.

990907:       Applicant notified of intended recommendation for discharge with the
              least favorable characterization of service as under other than honorable
              conditions by reason of misconduct - drug abuse and misconduct -
              commission of a serious offense.
              [Extracted from Applicant’s supporting documents].

990907:       Applicant advised of rights and having elected not to consult with counsel,
              elected to waive all rights except the right to submit statements to the
              Administrative Board or to the Separation Authority in lieu of a board and
              to obtain copies of the documents used to support the basis for the
              separation.
              [Extracted from Applicant’s supporting documents.]

990913:       Applicant to unauthorized absence at 0630.


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Docket No. ND06-00386



001024:       Applicant from unauthorized absence (406 days).

001117:       Charges preferred against Applicant for violation of the Uniform Code of
              Military Justice (UCMJ) Article 86: Unauthorized absence (UA) from
              990913 to 001024.

001129:       Applicant requested an administrative discharge in lieu of a trial by court-
              martial. Applicant acknowledged having consulted with counsel and having
              been fully advised of the implications of his request. The Applicant
              acknowledged that he was guilty of violating Article 86 of the UCMJ. The
              Applicant acknowledged his understanding that if discharged under other
              than honorable conditions, it might deprive him of virtually all veterans'
              benefits based upon his current enlistment, and that he might expect to
              encounter substantial prejudice in civilian life in situations wherein the type
              of service rendered or the character of discharge received therefrom may
              have a bearing. [Extracted from Applicant’s supporting documents.]

001208:       DD 214: Applicant discharged this date in lieu of trial by court martial
              with a characterization of service as under other than honorable
              conditions.

Service Record did not contain the Administrative Discharge package.




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Docket No. ND06-00386


           PART III – RATIONALE FOR DECISION AND PERTINENT
                                 REGULATION/LAW

Discussion

The Applicant was discharged on 20001208 in lieu of a trial by court-martial (A and B)
with a service characterization of under other than honorable conditions. 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
Board presumed regularity in the conduct of governmental affairs (E).

The Applicant’s representative submitted the following as issue: equity
review/consideration, 32 CFR 70.9(c)(3), highlighting the positive aspects of the
Applicant’s service and his post-service conduct. In regard to the Applicant’s service, there
is credible evidence in the record that the Applicant used illegal drugs, a violation of
Article 112a of the UCMJ. Mandatory processing for separation is required for sailors
who abuse illegal drugs. Separation under these conditions generally results in
characterization of service under other than honorable conditions. The Applicant’s
service was further marred by nonjudicial punishment proceedings for violations of Articles
86 and 87 of the UCMJ, and a second Article 86 violation to which he acknowledged guilt
in order to avoid the consequences of a court-martial. The NDRB advises the Applicant
that certain serious offenses warrant separation from the Navy in order to maintain proper
order and discipline. Violations of Article 86, 87 and 112a are considered serious offenses
and a punitive discharge is authorized if adjudged at a special or general court-martial. 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 NDRB is authorized to consider post-service factors in the recharacterization of a
discharge. However, 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, a procedural
impropriety or inequity 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, is considered. The Applicant, through
his representative, provided employment performance standards and evaluations, and
three letters of recommendation from a former co-worker and current supervisors as
documentation of post-service accomplishments. The Applicant's efforts need to be more
encompassing than those provided. For example, the Applicant could have produced
evidence of continuing educational pursuits, documentation of community service, evidence
of drug free existence, and certification of non-involvement with civil authorities. The
Board determined that the documentation provided by the Applicant did not mitigate the



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Docket No. ND06-00386

misconduct that resulted in the characterization of discharge. Therefore, no relief will be
granted.

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
additional evidence related to this 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), Change 29, effective
11 Jul 2000 until 21 Aug 2002, Article 1910-106 (formerly 3630650), SEPARATION IN
LIEU OF TRIAL BY COURT-MARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of
Military Justice, Article 86, unauthorized absence for a period more than 30 days upon
conviction by a Special or General Court-Martial, in accordance with the Manual for
Courts-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.

E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge
Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of
Government Affairs.




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Docket No. ND06-00386



                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




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