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NAVY | DRB | 1999_Navy | ND99-00328
Original file (ND99-00328.rtf) Auto-classification: Denied


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

ex-AOAA, USN
Docket No. ND99-00328

Applicant’s Request
The application for discharge review, received 981230, 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 000110. 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.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. I believe my discharge should be upgraded due to the fact, of my excellent record before, and I also believe I have continued to move forward & improve on my life another point is if the Chief of Staff can admit to the same offense and everyone should "stay out of his personal life" maybe he should be required to at least study the UCMJ if not go by it's rules there are many people who chose to fight for his country he should look at us and then see if he is still worthy of the Presidency I was an excellent sailor, just one bad situation and it was an isolated event I received my punishment, and I believe, deserve an upgrade in Discharge. Sincerely

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Job/Character reference dated October 8, 1998
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     940916 - 950605  COG

 Period of Service Under Review :
Date of Enlistment: 950606               Date of Discharge: 971224

 Length of Service (years, months, days):

         Active: 02 06 19
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

 Education Level: 12                        AFQT: 70

 Highest Rate: AOAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF                      OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, AFSM, SSR, AFEM, Letter of Commendation

 Days of Unauthorized Absence: None

 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 :

970418:  Applicant apprehended by Jacksonville Sheriff's office, jail docket number 97152147. Charged with resisting an officer without violence by false ID. Pled guilty. Adjudication of guilty withheld, fined $100.00. [Extracted from CO's message dated 12 Dec 97.]
970522:  NJP for violation of UCMJ, Article 134: False military pass offense.
         Award: Extra duty for 14 days, reduction to E-2. Reduction suspended for 6 months. No indication of appeal in the record. [Extracted from CO's message dated 12 Dec 97.]
970616:  Retention Warning: Advised of deficiency (False or unauthorized pass offense.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. [Extracted from CO's message dated 12 Dec 97.]
970802:  Vacate reduction to E-2 awarded at CO's NJP dated 22 May 1997. [Extracted from CO's message dated 12 Dec 97.]
970802:  NJP for violation of UCMJ, Article 92: Disobeying a lawful order or regulation on 18 June 1997, violation of UCMJ Article 134: Adultery on 25 June 1997.
         Award: Forfeiture of $505 per month for 2 months, restriction for 60 days. No indication of appeal in the record.
970811:  NJP for violation of UCMJ, Article 92: Failure to obey order or
 regulation. [Extracted from CO’s message dated 12DEC97.]
 Awarded: Forfeiture of ½ pay for 2 months, restriction for 60 days and RIR to E-2 (vacated suspension).

 971109:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
         Award: Forfeiture of 1/2 month's pay for 2 months, restriction for 45 days. No indication of appeal in the record. [Extracted from CO's message dated 12 Dec 97.]

971116:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by CO's NJP 19MAY97 for violation of UCMJ, Article 91 (insubordinate conduct toward a petty officer) and Article 117 (provoking speeches or gestures), and CO's NJP 11 NOV 97 for Violation of UCMJ Article 121 (larceny); and commission of a serious offense as evidenced by CO's NJP 19 MAY 97, and CO's NJP 11 NOV 96. ( Unsigned by Commanding Officer and by the applicant. CO’s message dated 12DEC97, indicated letter was signed by member. )
971117:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to waive all rights.

971212:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to Commission of a Serious Offense and misconduct due to a Pattern of Misconduct as evidenced by CO's NJP 22MAY97 for violation of UCMJ, Article 134 general article (false military pass offense), CO's NJP 11AUG97 for violat ion of UCMJ, Article 92 (failure to obey order or regulation) and CO's NJP 09NOV97 for violation of UCMJ, Article 92 (failure to obey order or regulation).

971218:  COMNAVBASE Jacksonville FL directed the applicant's discharge under Other Than Honorable conditions by reason of misconduct due to a Pattern of Misconduct. COMNAVBASE noted that the member should have been processed for misconduct due to Commission of a Serious Offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 971224 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 determined this issue is without merit. The applicant claims he had an excellent record before this incident, he continues to move forward and his violations of the UCMJ were isolated incidents. The applicant’s discharge was based on four violations of the UCMJ. He was given a retention warning after his first misconduct but continued to show total disregard for military regulations. Additionally, he has not provided any proof that he is living a life worthy of upgrading his discharge. The applicant’s discharge was proper and equitable. Relief denied.

The following information 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, 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 or was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge to determine if proper procedures were followed. This applicant’s discharge was proper and equitable . Additionally, the NDRB is authorized to award clemency for post-service factors (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). The applicant did not provided any documentation of good character or conduct, which would warrant an upgrade to his discharge. The applicant is encouraged to establish a reputation of good character and document his accomplishments. Documentation to support any claim of good character is a must to receive any consideration based on post-service achievements . He remains eligible for a personal appearance hearing, to discuss his post-service accomplishments, provided an application is received by the NDRB within fifteen years from the date of his discharge. Legal representation at the hearing is advisable.
 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 14, effective 03 Oct 96 until 11 Dec 97), 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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