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NAVY | DRB | 1999_Navy | ND99-00500
Original file (ND99-00500.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND99-00500

Applicant’s Request
The application for discharge review, received 990225, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant listed the Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991213. 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

1. I feel that my discharge was to do with the personelle and not of my conduct. I wish to upgrade my statos so that I can better myself & my self-esteem. I would also be able to get a better job.

 2. After a review of the Former Service Members (FSM) DD Form Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by the applicant. Specifically, the Former Service Member (FSM) is seeking an upgrade in his discharge from Other Than Honorable (OTH) to Honorable or General, Under Honorable Conditions.

The FSM contends his discharge was not due to his conduct. He maintains that his discharge was due to miscommunication between himself and other personnel. The FSM also makes an indication that this unfavorable discharge is resulting in his inability to obtain better employment and causes his self-esteem to be low.

The evidence of record shows a pattern of misconduct, however, we contend these infractions, in and of themselves, are minor and the Navy had the authority to assign a more favorable discharge. Therefore, we continue to support the FSM in his petition for an upgrade in his discharge.

We ask for the boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede airiy issues previously submitted by the applicant.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     891129 - 900319  COG

 Period of Service Under Review :
Date of Enlistment: 900320               Date of Discharge: 920416

 Length of Service (years, months, days):

         Active: 02 00 27
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 11 GED           AFQT: 37

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (1)    Behavior: 2.80 (1)                OTA: 2.80

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NDSM, SASM, JMUC

 Days of Unauthorized Absence: 5

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 :

900326:  Retention Warning from Recruit Training Command: Advised of deficiency (Non-swim qualified.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

901108:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Fail to go at time prescribed to appointed place of duty, to wit: duty section muster on 18Oct90, (2) Unauthorized absence from 0730, 3Nov90 to 1611, 6Nov90 (3 days/surrendered), violation of UCMJ Article 92: Disobey a lawful order by wrongfully wearing civilian clothes while in a duty status on 18Oct90.
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
901108:  Retention Warning from Service School Command: Advised of deficiency (Poor military performance, without authority, absent yourself from your organization, to wit: Service School Command, by wrongfully wearing civilian clothes while in a duty status..), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910221:  NJP for violation of UCMJ, Article 86: Absent from appointed place of duty 1600, 20Feb90 to 0610, 21Feb90.
         Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 10 days, reduction to FR. Reduction suspended for 3 months. No indication of appeal in the record.
911125:  NJP for violation of UCMJ, Article 90: Willfully disobeying a superior commissioned officer.
         Award: Forfeiture of $377 per month for 2 months, restriction and extra duty for 45 days, reduction to FR. No indication of appeal in the record.
911125:  Retention Warning from USS CLEVELAND (LPD 7): Advised of deficiency (Willfully disobeying a superior commissioned officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920306:  NJP for violation of UCMJ, Article 86: Absence from unit on 0700, 25Feb92 to 0630, 26Feb92, violation of UCMJ Article 92 (2 specs): Failure to obey a lawful order, to wit: uniform liberty.
         Award: Forfeiture of $392 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
920317:  USS CLEVELAND (LPD-7) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense as evidenced by your nonjudicial punishments dated 08 November 1990, 21 February 1991, 25 November 1991 and 06 March 1992.
920317:          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.
920321:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

920408:  CNMPC 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 920416 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).

The applicant’s first issue is non decisional. The NDRB found the applicant’s discharge proper, and the applicant provided no post service documentation to support an upgraded discharge. Relief not warranted.
The applicant’s second issue, stated by the DAV, restates the applicant’s first issue and is non decisional. Additionally the DAV provides no post service documentation to warrant an upgraded discharge. Relief not warranted.

The applicant’s third issue, stated by the DAV, contends the applicant was discharged due to a miscommunication between himself and other personnel rather than his own misconduct. The NDRB found this issue without merit. The applicant’s misconduct is documented in four separate NJP’s over a one year and four month period. The applicant’s misconduct is the reason for discharge. Relief not warranted.
The applicant’s fourth issue, stated by the DAV, contends that the applicant’s misconduct infractions, in and of themselves, were minor, and the Navy had the authority to assign a more favorable discharge. The NDRB found that the type discharge assigned to the applicant was proper and equitable.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C, effective 15 Aug 91 until
04 Mar 93), 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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