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NAVY | DRB | 1999_Navy | ND99-00051
Original file (ND99-00051.rtf) Auto-classification: Denied


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

ex-AMSAN, USN
Docket No. ND99-00051

Applicant’s Request
The application for discharge review, received 981006, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to “end of contractual service”. The applicant requested a Personal Appearance Hearing before a Traveling Panel closest to Orange County or Los Angeles, CA. The applicant listed no 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 HONORABLE CONDITIONS(GENERAL)/Misconduct – Pattern – frequent involvement of a discreditable nature with civil or military authorities, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. I have become a much better person, am interacting very well with all of the individuals in which I have contact with and work with.

2. Letter of Recommendation giving high reference to any future prospective employer<s>.

3. Letters of explanation to UCMJ charges which were filed against me.

4. Copy of DD-214.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Character Reference undated
Employer’s Letter of Recommendation dtd 980506
Letter to the Board undated (5 pages)
Copy of DD Form 214 (2).

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:  None
         Inactive:        USNR (DEP)                790620 - 800331  COG

 Period of Service Under Review :
Date of Enlistment: 800401                        Date of Discharge: 830617

 Length of Service (years, months, days):

         Active: 03 02 17
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                                 AFQT: 38

 Highest Rate: AMS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.25 (9)    Behavior: 3.11 (9)                OTA: 3.20

 Military Decorations: None

 Unit/Campaign/Service Awards: B“E”R, NEM, and SSDR

Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS(GENERAL)/Misconduct – Pattern – frequent involvement of a discreditable nature with civil or military authorities, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :
                                                                                
810212:  NJP for violation of UCMJ, Article 86: Unauthorized absence (UA) (unspecified), and Article 92: Missing muster (unspecified).
         Award: Forfeiture of $75 per month for two months, and restriction for 15 days. There was no indication of an appeal in the record.
820505:  Retention Warning: Notified of deficiency (frequent involvement of a discreditable nature with military authorities), advised of the consequences of further deficiencies, and issued a discharge warning.
820714:  NJP for violation of UCMJ, Article 128: Assault with intent to commit bodily harm.
         Award: Forfeiture of $100 for one month. There was no indication of an appeal in the record.
820809:  NJP for violation of UCMJ, Article 134: Wrongfully urinate into a trash can located in the V-2 Head on 820808.
 Award: Forfeiture of $100 per month for two months. There was no indication of an appeal in the record.

 830510:  NJP for violation of UCMJ, Article 86: UA (unspecified).
                           Award: Reduction to E-3.

830518:  CO, CARAEWRON ONE TWO TWO notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct- pattern – frequent involvement of a discreditable nature with civil or military authorities as evidenced by four NJPs during the current enlistment.
830518:          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.
830524:  CO recommended discharge for misconduct – pattern of misconduct- frequent involvement of a discreditable nature with civil or military authorities.

830609:  CNMPC directed the applicant's discharge Under Honorable Conditions (General) due to misconduct - pattern – frequent involvement of a discreditable nature with civil or military authorities.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 830617 under honorable conditions (general) for misconduct pattern frequent involvement of a discreditable nature with civil or military authorities (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).

The applicant is advised that 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 the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. In response to issues 1 and 2, the applicant has not provided ample documentation of good character and conduct. Therefore no relief will be granted. The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

The applicant included a “letter of explanation to UCMJ charges.” The Board cannot change or nullify a member’s NJP. 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, and 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. No relief will be granted on the basis of this issue.

The Board cannot justify changing the reason for the discharge unless it is inappropriate in describing the circumstances surrounding the applicant’s discharge. In the applicant’s case, the reason for discharge was “Misconduct-pattern of misconduct” and it most clearly describes why the applicant was discharged. The reason for discharge will remain.



 Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560, Change 1/83, effective
28 Apr 83 until 04 Nov 84), Article 3630600, SEPARATION OF ENLISTED MEMBERS 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
                  Building 36 Washington Navy Yard
                  720 Kennon Street, SE RM 309
                  Washington, D.C. 20374-5023     


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