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NAVY | DRB | 1999_Navy | ND99-00347
Original file (ND99-00347.rtf) Auto-classification: Denied


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

ex-BMSR, USN
Docket No. ND99-00347

Applicant’s Request
The application for discharge review, received 990107, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance hearing discharge review. The applicant listed the American Legion as his representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary record discharge review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991130. 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 – frequent involvement of a discreditable nature with civil or military authorities, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (EQUITY ISSUE) His violations of the UCMJ notwithstanding, this former member opines that his otherwise creditable service period is sufficient to warrant separation under honorable conditions.

2. (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement
Copy of Certificate of Graduation dated October 3, 1984
Copy of letter of commendation dated September 4, 1984 and March 11, 1985
Copy of letter of appreciation dated May 23, 1985
Character reference dated December 14, 1998
Character reference dated December 23, 1998

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     820212 - 821123  COG

 Period of Service Under Review :
Date of Enlistment: 821124               Date of Discharge: 850703

 Length of Service (years, months, days):

         Active: 02 07 10
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 61

 Highest Rate: BMSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.33 (4)    Behavior: 2.95 (4)                OTA: 3.10

 Military Decorations: None

 Unit/Campaign/Service Awards: Letter of Commendation (2)

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

830719:  NJP for violation of UCMJ, Article 107: Making false official statement on 2Jun83.
         Award: Forfeiture of $100 per month for 2 months, reduction to SA. No indication of appeal in the record.
830809:  NJP for violation of UCMJ, Article 92: Disobeying a lawful general order on 1Aug83, violation of UCMJ Article 134: Alleging larceny of services on or about 10May83 to 10Jun83.
         Award: Forfeiture of $100 per month for 2 months, reduction to SR. Reduction suspended for six months. No indication of appeal in the record.
830809:  Retention Warning from COMBAT SYSTEMS TECHNICAL SCHOOLS COMMAND, Mare Island, CA: Advised of deficiency (violation of Article 107, violation of Article 134 and 92), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

831201:  Vacate reduction to SR awarded at NJP dated 83Aug09 due to continued misconduct.
831201:  NJP for violation of UCMJ, Article 121: Wrongful appropriation of $60.00.
         Award: Forfeiture of $320 per month for 2 months, written reprimand. No indication of appeal in the record.
841019:  Retention Warning from USS MONITCELLO (LSD 35): Advised of deficiency (wrongful appropriation of $60.00 on 83Dec01, and in addition your performance has not been considered satisfactory), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

841023:  NJP for violation of UCMJ, Article 121: Wrongful appropriation of government property.
         Award: Forfeiture of $50 per month for 2 months, restriction and extra duty for 30 days, reduction to BMSR. No indication of appeal in the record.
850615:  NJP for violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty, violation of UCMJ Article 91 (4 specs): Insubordinate conduct toward a superior petty officer, violation of UCMJ, Article 134: Threat communicating.
         Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 30 days, reduction to BMSR. Restriction and extra duty for 1 day suspended for 6 months. No indication of appeal in the record.
850617:  USS MONTICELLO (LSD 35) 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 and misconduct due to commission of a serious offense.
850617:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
850619:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct – pattern - frequent involvement of a discreditable nature with civil or military authorities. Commanding officer’s comments (verbatim): BMSR (applicant) reported onboard this command 83Aug20. Even prior to reporting SNM had begun a distinct pattern of misconduct. Since reporting SNM has been administered CO NJP on three different occasions. His previous conduct shows how SNM refuses to conform to Navy life and authority. SNM has been given chances to 'square away' but absolutely refuses to accept authority in the functioning of this command. In addition, BMSR (applicant) signed a PG 13 (administrative remarks), on 84Oct19, acknowledging any further misconduct or involvement with military authorities of a discreditable nature would result in administrative processing and an other than honorable discharge. By his actions it is evident any further guidance, counseling, and/or disciplinary action would be fruitless in his case. He leaves this command no recourse but to strongly recommend he be separated from naval service with an other than honorable discharge.

850623:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of 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 850703 under other than honorable conditions 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).

In the applicant’s issue 1, the Board found that when a sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. The applicant’s service was marred by the award of nonjudicial punishment (NJP) on five occasions for violations of the Uniform Code of Military Justice (UCMJ). The applicant’s misconduct included false official statement, disobeying a lawful general order, larceny, wrongful appropriation (twice), unauthorized absence, insubordination, and communicating a threat. The applicant’s conduct and proficiency markings, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for a general discharge. An upgrade to general (under honorable conditions) would be inappropriate. Relief is therefore denied.

Furthermore, while the applicant may feel his immaturity was a factor that contributed to his action, 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.

The following is in regards to the applicant’s second issue. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. The applicant must be aware that 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, an error or injustice 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, may be considered by the NDRB. . The applicant provided two letters of recommendation from his employer as documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. 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. Representation at personal appearance hearing is highly recommended.


Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560, Change 10/84, effective
17 Sep 84 until 15 Dec 85), 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
                  Washington Navy Yard
                  720 Kennon St SE Rm 309
                  Washington, D.C. 20374-5023     


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