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Docket No. ND01-01178

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

 ex-FR, USN
Docket No. ND01-01178

Applicant’s Request

The application for discharge review, received 010917, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance before a traveling panel closest to Wilmington, NC.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020517.  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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.  Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  The main reason I am requesting a hearing is that I would like to use my G.I. bill to help pay for education and my VA. Home loan so I can purchase a home after I finish school.  I feel like my treatment at my command my uncalled for not that I didn't deserve punishment but my division wanted me not to have my benefits. I was jumped on by two 1^st class officers nothing was done they simply brushed it of like it didn't exist.  There were other instances but one pushed me.  I still remember the names of those who mistreated me.  I was young & immature but I paid my money for the GI. bill & completed my time all I ask is chance to better my life for myself & my two children.  I've already started back to school.

Documentation

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

Character reference from pastor dated October 14, 2001
Student verification from Miller-Motte Technical College dated October 16, 2001
Detailed Attendance Report
Grade History

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  930413		Date of Discharge:  960214

Length of Service (years, months, days):

	Active:    02  07  08
	Inactive:  00  02  23

Age at Entry:  20			Years Contracted:  8

Education Level:  12			AFQT:  39

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (1)	Behavior:  3.60 (1)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards:  JMU, BER, AFEM (Bronze Star), NDSM, USCGUC, USCGOSR, SASM (Bronze Star), HSM

Days of Unauthorized Absence: 201

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

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

Chronological Listing of Significant Service Events:

940203:	NJP for violation of UCMJ, Article 92 (2 specs): (1) Failure to obey lawful written order.
	Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 20 days.  No indication of appeal in the record.

940203:	Retention Warning from USS SAVANNAH (AOR 4):  Advised of deficiency (Failure to obey other lawful written order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

940322:	NJP for violation of UCMJ, Article 134: General article.
	Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 20 days.  No indication of appeal in the record.

940627:	Counseling:  Advised of deficiency (Responsibilities and watch standing), notified of corrective actions and assistance available.

940812:	Counseling:  Advised of deficiency (Responsibilities and watch standing), notified of corrective actions and assistance available.

940903:	NJP for violation of UCMJ, Article 117: Provoking speeches or gestures, violation of UCMJ, Article 128: Simple assault, violation of UCMJ, Article 134: Communicating a threat, violation of UCMJ, Article 86: Absence from unit, violation of UCMJ, Article 91 (3 specs): Disrespect toward petty officer.
	Award: Forfeiture of $400 per month for 1 month, restriction and extra duty for 30 days.  No indication of appeal in the record.

940906:	Retention Warning from USS SAVANNAH (AOR 4):  Advised of deficiency (Provoking speeches or gestures simple assault, communicating a threat, absence from unit, contempt or disrespect toward warrant officer, petty officer or noncommissioned officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

950117:	Counseling:  Advised of deficiency (Responsibilities and personal behavior), notified of corrective actions and assistance available.

950302:	Counseling:  Advised of deficiency (substandard appearance and personal behavior), notified of corrective actions and assistance available.

950315:	NJP for violation of UCMJ, Article 86: Failing to go or leaving place of duty, violation of UCMJ, Article 91 (2 specs): Willful disobedience of a warrant officer, noncommissioned officer, or petty officer, violation of UCMJ, Article 92 (2 specs): Dereliction of duty, violation of UCMJ, Article 92: Failure to obey lawful general order.
	Award: Forfeiture of $400 per month for 1 month, restriction and extra duty for 30 days, reduction to FA.  No indication of appeal in the record.

950315:	Retention Warning from USS SAVANNAH (AOR 4):  Advised of deficiency (Article 86: Failing to go or leaving place of duty, Article 91 (2 specs): Willful disobedience of a warrant officer, noncommissioned officer or petty officer, Article 92: Dereliction of duty, Article 92 (2 specs): Failure to obey general order or regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

950331:	NJP for violation of UCMJ, Article 91: Contempt or disrespect toward petty officer, violation of UCMJ, Article 91: Willful disobedience of a petty officer, violation of UCMJ, Article 86 (2 specs): Failing to go to place of duty.
	Award: Forfeiture of $416 per month for 2 months, restriction and extra duty for 45 days, reduction to FR.  No indication of appeal in the record.

950414:	NJP for violation of UCMJ, Article 86: Failing to go or leaving place of duty, violation of UCMJ, Article 91 (2 specs): (1) Willful disobedience of a petty officer, (2) Contempt or disrespect toward petty officer.
	Award: Forfeiture of $300 per month for 1 month, confinement of bread and water for 3 days.  No indication of appeal in the record.

950504:	NAVDRUGLAB, Norfolk, VA reports applicant's urine sample, received 950424, tested positive for THC.

950509:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance.
	Award: Forfeiture of $427.20 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

950511:	Applicant declared a deserter by breaking restriction on 11May95.

950511:	NJP for violation of UCMJ, Article 86: Absence from unit, organization, place of duty, violation of UCMJ, Article 90: Willfully disobeying superior commissioned officer, violation of UCMJ, Article 91: Contempt or disrespect toward warrant officer, noncommissioned officer, or petty officer, violation of UCMJ, Article 117: Provoking speeches or gestures, violation of UCMJ, Article 134 (2 specs): (1) Disorderly conduct, (2) Breaking restriction.
	Award: Forfeiture of $427.20 per month for 2 months, confinement on bread and water for 3 days.  No indication of appeal in the record.

950511:	Applicant to unauthorized absence 0715, 11May95.

950509:	USS SAVANNAH (AOR 4) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse, a pattern of misconduct, and commission of a serious offense.

950510:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

950512:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

950519:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, commission of a serious offense and drug abuse.  Commanding officer’s comments (verbatim): I concur with the finding and recommendation of the Administrative Board.  Member went on unauthorized absence the day prior to his board.  I recommend that he be discharged in absentia.

950607:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Discharge in absentia.

951108:	Applicant returned to military control at PSD Camp Lejeune, NC on 0715, 28Nov95.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged, in absentia, on 960214 under other than honorable conditions for misconduct due to a pattern of misconduct (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 Veterans Administration determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Relief denied.

The applicant provided no corroborating evidence to support his assertion that he was mistreated by members of his chain of command.  Therefore relief is denied on this issue.

The Board found the applicant was given numerous chances to complete his enlistment, and was processed for involuntary separation only after numerous counseling sessions and his seventh non-judicial punishment.  The applicant’s assertion that his command unfairly denied him his post-service benefits is without merit. While he may feel that his immaturity and youth was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice 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.  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, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT. 

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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6730/A9449/A9217/A9223/A9301/A9221