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NAVY | DRB | 1999_Navy | ND99-00022
Original file (ND99-00022.rtf) Auto-classification: Denied


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

ex-ASAA, USN
Docket No. ND99-00022

Applicant’s Request
The application for discharge review, received 981001, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested 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 990920. 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/ MISCONDUCT - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. “While my discharge was due to a pattern of misconduct, and I'm not going to argue this, I would like to address my last charge of assault, it was not assault but misread action. I was sitting on top of a desk while talking to my chief petty officer when I jumped from the desk. He took it as an attempt to attack him when in fact I was just done talking, with that being said, I would like to add, while in the navy my job performance was always above average as it still remains today. I have had basicly two jobs since the navy and the second, is under a government contract, I have attached a letter of appreciation from the department of navy. Please take all of this into consideration when reviewing my record. A reply in writing would be appreciated.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies of DD Form 214
Copy of Letter of Appreciation
Loan Entitlement Application from Dept of Veteran Affairs

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     881130 - 891101  COG

 Period of Service Under Review :
Date of Enlistment: 891102               Date of Discharge: 930625

 Length of Service (years, months, days):

         Active: 03 07 24
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 51

 Highest Rate: ASAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.90 (4)    Behavior: 3.15 (4)                OTA: 3.25

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDRwb*, NUC, SASMw2b*, KLSM

Days of Unauthorized Absence: None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

900104:          NJP of violation of UCMJ, Article 92 (3 Specs): Spec 1: having knowledge of a lawful order issued by CO, RTC, San Diego CA, to wit: NAVCRUITRACOMSDIEGOINST 5400.2C, para. 4100.1 of 10MAR 88, on or about 25DEC89, fail to obey the same by wrongfully going to Bldg 85 (bowling alley), Spec two: Having knowledge of a lawful order issued by CO, RTC, San Diego CA, to wit: NAVCRUITRACOMSDIEGOINST 1700.1, para. 5.F of 10MAR88, on or about 25DEC89, failed to obey the same by wrongfully consuming an alcoholic beverage and Spec 3: Having NAVCRUITRACOMSDIEGOINST 500.2C, para. 420.C of 10MAR 88, on or about 25DEC89, failed to obey the same by wrongfully smoking cigarettes.
 Violation of UCMJ, Article 108: On or about 25DEC89, willfully destroyed a bulkhead, by slamming a door.
Violation of UCMJ, Article 134: On or about 25DEC89, drunk and disorderly.
          Award: Forfeiture of $200 per month for 2 months. No indication of appeal in the record.
900104:  Retention Warning from RECRUIT TRAINING COMMAND, NAVAL TRAINING CENTER, SAN DIEGO: Advised of deficiency (Violation of UCMJ, Article 92 (3 Specs): Failure to obey lawful written order, Article 108: Damaging military property, and Article 134: Disorderly conduct), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900409:  NJP for violation of UCMJ, Article 134: False or unauthorized pass offense, to wit: did on or about 900312 wrongfully and falsely state and sign a visitors pass for his vehicle that he had minimum insurance on the vehicle, the said SNM then knowing this to be totally false.
         Award: Forfeiture of $150 per month for 1 month (suspended for 6 months), restriction to 455 for 7 days (suspended for 6 months) and extra duty for 7 days (suspended for 6 months). No indication of appeal in the record.

900409:  Retention Warning from COMMANDING OFFICER, NAVAL AIR TECHNICAL TRAINING CENTER, NAVAL AIR STATION MEMPHIS, MILLINGTON, TN: Advised of deficiency (Unauthorized pass offense) SNM did wrongfully and falsely state and sign a visitors pass for his vehicle that he had minimum insurance on the vehicle, the said SNM then knowing this to be totally false on or about 900312), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910529:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0730, 910414 until 0645 910415.
         Award: Restriction and extra duty for 30 days. No indication of appeal in the record.
910529:  Retention Warning from USS JOHN F. KENNEDY (CV-67): Advised of deficiency (Captain's Mast on 910529, for violation of the UCMJ, Article 86, UA from unit 0730, 910414 until 0645 910415), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920128:  NJP for violation of UCMJ, Article 90: Willfully disobey a commissioned officer on 911214, violation of UCMJ, Article 91: Willfully disobey a lawful order from superior Chief Petty Officer on 911214.
         Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.

930519:  NJP for violation of UCMJ, Article 91: Disobey a lawful order from superior E-7, to wit: to change his uniform and help the support equipment personnel tie down yellow gear on 930406, violation of UCMJ, Article 128: Assault E-7 by swinging a closed fist at his face on 930406.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 20 days, reduction to E-2. No indication of appeal in the record.
930520:  Commanding Officer, USS JOHN F. KENNEDY (CV-67) notified applicant of intended recommendation for discharge under Other Than Honorable conditions by reason of Misconduct due to Commission of Serious Offense and Pattern of Misconduct as evidenced by all punishments received under the UCMJ during the applicant’s current enlistment.
930520:          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.
930602:  Commanding Officer recommended discharge under Other Than Honorable conditions by reason of Misconduct due to a Pattern of Misconduct.

930610:  BUPERS directed the applicant's discharge under Other Than Honorable conditions by reason of Misconduct due to a Pattern of Misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930625 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).

In the applicant’s issue 1, the Board found this issue to be without merit. The Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure or discretion associated with his discharge at the time of its issuance, or that his rights were prejudiced thereby. Furthermore, there has been no change in policy by the Navy or higher authority, made expressly retroactive to the type of discharge received by the applicant. Relief denied.

The following is provided for the applicant’s edification. There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life, subsequent to leaving military service. The NDRB reviews the propriety (did the Navy follow its own rules in processing the applicant for discharge) and equity (did the applicant receive a discharge characterization in keeping with Navy guidance and was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge. Additionally, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge (what has the applicant done since discharge to become a contributing member of his/her community and to society in general). Those factors include but are not limited to the following: Evidence of continuing educational pursuits (transcripts, diploma, degree or vocational-technical certificates), a verifiable employment history (letter of recommendation from employer), documentation of community service (letter from activity/community group), certificate of non-involvement with civil authorities (police records check) and proof of not using drugs (detoxification certificate). At this time the applicant has not provided any documentation of good character and conduct but is encouraged to continue his pursuits. The applicant is reminded that he is eligible for a personal appearance hearing, provided the application is received within 15 years from the date of discharge. Legal representation at personal appearance hearings is highly recommended.

 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 – 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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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
                  Washington Navy Yard
                  720 Kennon St SE Rm 309
                  Washington, D.C. 20374-5023     


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