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NAVY | DRB | 1999_Navy | ND99-00511
Original file (ND99-00511.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND99-00511

Applicant’s Request
The application for discharge review, received 990302, 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 did not list any 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 was kicked out about 3 months before I was initially suppose to get out. So I almost served all of my time.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     880524 - 880612  COG

 Period of Service Under Review :
Date of Enlistment: 880613               Date of Discharge: 910520

 Length of Service (years, months, days):

         Active: 02 11 08
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 31

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.90 (3)    Behavior: 3.30 (3)                OTA: 3.16

 Military Decorations: None

 Unit/Campaign/Service Awards: BER (2), MUC, HSM, NDSM

 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 :

880613:  Applicant counseled concerning the Navy's Physical Readiness Program.

880615:  Applicant briefed on Navy policy on drug and alcohol abuse.

880720:  Applicant briefed on Navy policy on drug and alcohol abuse.

 881025:  Retention Warning from Recruit Training Command, Orlando, FL: Advised of deficiency (Defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose preservice civil offense.), advised of consequences of further deficiencies, and issued discharge warning.

881121:  Applicant surrendered from unauthorized absence on 0730-1500, 21Nov88.

 890607:  Civil Conviction: Violation of careless driving and driving without a license on 27May89.
 Sentence: Fined $163.00.
890711:  Retention Warning from USS HOLLAND (AS-32): Advised of deficiency (Driving without a license. Careless driving.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900404:  NJP for violation of UCMJ, Article 86 (5 specs): (Specs 1-4) Unauthorized absence from unit, Spec 5: Unauthorized absence from appointed place of duty, violation of UCMJ, Article 91: Disrespectful in language toward a petty officer, violation of UCMJ, Article 92 (2 specs): Disobeying a lawful order, violation of UCMJ, Article 134: Disorderly conduct.
         Award: Confinement for 30 days. No indication of appeal in the record.
900404:  Retention Warning from USS HOLLAND (AS-32): Advised of deficiency (Unauthorized absence from unit and appointed place of duty. Disrespectful in language towards a petty officer. Disobeying a lawful order. Disorderly conduct.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900719:  Retention Warning from USS HOLLAND (AS-32): Advised of deficiency (Habitual tardiness and noncompliance with listed instructions on Encl (1) on back of sheet.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900912:  NJP for violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty on 90Aug12, violation of UCMJ Article 134: Incapacitated for duty on 90Aug22.
         Award: Restriction and extra duty for 30 days, reduction to FR. No indication of appeal in the record.
910228:  Drug and Alcohol Abuse Report: Alcohol abuse, 1 to 3 times per week, ashore off duty, identified by command supervisor. CAAC and physician found applicant dependent and recommended Level III treatment. Commanding officer recommended separate via VA hospital.

910404:  NJP for violation of UCMJ, Article 86: Fail to go on 91Feb03, violation of UCMJ Article 112: Drunk on duty on 91Apr03.
         Award: Forfeiture of $376.85 per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.
910412:  USS HOLLAND (AS-32) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ and the civilian conviction during your current enlistment and alcohol abuse rehabilitation failure.
910415:          Applicant advised of his rights and having consulted 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 and to make a statement.
910415:  Applicant's statement:

 1. I understand that in accordance with references (a) and (b) I am being processed for an administrative separation from the naval service.
         2. I am submitting this statement in accordance with references (a) and (b), and respectfully request that, if separated from the naval service, my service be characterized as General in accordance with reference (c) because I believe that even though the negative aspects of my conduct may outweigh the positive aspects, my service has been honest and faithful.

 3. On 14 November 90 an administrative board was held to consider my discharge from the Navy for a pattern of misconduct. At that time, the board made a finding that I had not committed misconduct due to a pattern of misconduct. However, the results of that board were not, sent to Washington until the first part of April 1991. As of this date, I have not heard the final results of that board from NMPC. Many of the things that were considered by the administrative board on 14 November 90 are again being used as a basis for processing me.

4. After the administrative board of 14 November 90, I was glad that I had a chance to start over. At that time I was working in the 1st Division for Chief H_ and Petty Officer M_. Both of these men spoke highly of me and gave statements to my first board. However, after the board I was transferred from lst Division and placed in 3rd Division. I requested to remain in lst Division but this request was denied. Even though I found myself working in an area outside my rate and with other people who were being discharged, I tried to keep my composure and get qualified to do the jobs they gave me. However. I was not able to keep a perfect record in 3rd Division and was taken to mast again. I submitted an appeal from this mast, but I do not know the results.

5. Although I admit that I have had my problems, I do not feel that I have been given a fair opportunity to overcome them. When I thought I would have the chance to start over with a clean slate, I found out that I was being transferred to a division that really didn't want me. They knew of my record before and the trouble that I had. Instead of giving me a chance, they were looking for an opportunity for me to mess up. I do not believe that if I had lost at my first administrative board, that it would have taken almost six months for my case to be sent up to Washington.

6. All I am asking for now is a chance to start over with a clean slate. To the best of my knowledge, I do not have an average of less than 3.0 on my evals. My current evaluation is not in my service record. I respectfully request that my service be characterized as General, in accordance with reference (c) and that I be given a chance to start over, even if it is not in the Navy. Respectfully (applicant) FR, USN
910424:  Drug/ETOH dependency evaluation: Previous treatment: Level II completed Jan91 with poor prognosis at completion of course. ETOH physically dependent. Recommend separate from service via VA hospital.

910424:  Commanding officer recommended discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure and misconduct due to a pattern of misconduct. Commanding officer’s comments: (verbatim): FR (applicant) is being processed for separation due to misconduct, pattern of misconduct and alcohol abuse rehabilitation failure. FR (applicant) has been awarded NJP three times during the past year and has one civilian conviction. While in Level II, FR (applicant) continued to use alcohol. She has been diagnosed as alcohol dependent by the HOLLAND'S medical officer, offered treatment, and refused. And admin board determined to retain FR (applicant) in Nov 90, however her poor behavior and drinking continued. She is scheduled for NJP on 91May02 for VUCMJ Arts 89 91, 94(x4), & 128. FR (applicant) is not amenable to treatment, refuses to change her behavior to conform to Navy standards, has no potential for further naval service, and is not an asset to this command or the Navy. I recommend she be separated with an other than honorable discharge.

910507:  NJP for violation of UCMJ, Article 92 (2 specs): Failure to obey lawful order on 91Apr14, violation of lawful regulation on 91Apr14, violation of UCMJ Article 134: Drunk on board USS HOLLAND on 91Apr14. Award: Forfeiture of $376 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
910508:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

910510:  Applicant informed diagnosed by a medical officer as alcohol dependent and waived VA treatment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 910520 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 applicants issue that she was nearly finished her enlistment and hence warrants an upgraded discharge is without merit. Relief denied.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), 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     


RECORD OF VOTE

 BOARD MEMBER                       CHARACTER                 BASIS/REASON







D.L. STOVER-KENDRICK,             Relief not warranted            Relief not warranted
COL, USMCR, President





W. BURKE, CDR, USN                Relief not warranted              Relief not warranted
Member





 P.A. CRONIN, LT, USN              Relief not warranted              Relief not warranted






J.L. HILTON, LT, USN              Relief not warranted              Relief not warranted






C. BUCHHEISTER, LCDR, USN        Relief not warranted              Relief not warranted
 Recorder



A. The Naval Military Personnel Manual, (NAVPERS 15560A, Change 8, effective 21 Aug 89 until 14 Aug 91) Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT, states:

1. Basis. A member may be separated for misconduct when it is determined, under MILPERSMAN 3610200, that a member is unqualified for further military service by reason of one or more of the following circumstances:

a. Minor disciplinary infractions. A series of at least three but not more than eight minor violations (e.g. specifications) of the Uniform Code of Military Justice UCMJ (none that could warrant a punitive discharge and not drug related) documented in the service record, within the current enlistment, which have been disciplined by not more than two (2) punishments under the UCMJ. The member must have violated counseling (3630600.2) prior to initiating processing. If the presented case exceeds these limits, including three or more periods of unauthorized absence of more than 3 days duration each, then process for pattern of misconduct or commission of a serious offense. Process drug abuse cases in accordance with MILPERSMAN 3630620. If separation of a member in entry level status is warranted solely by reason of minor violations of the UCMJ, and the member's misconduct does not meet the eligibility requirements for processing due to a pattern of misconduct, or commission of a serious offense, the processing should be under Entry Level Performance and Conduct (MILPERSMAN 3630200).

b. A Pattern of Misconduct.

(1) A pattern of misconduct is defined in part as discreditable involvement with civil and naval authorities as evidenced by one or more of the following:

 (a) Two or more minor civilian convictions within the current enlistment, the latest civilian conviction and counseling to have occurred while assigned to the parent command. (Separation activities defined in MILPERSMAN 3640476, and other commands to which TEMDU is authorized by Commander, Military Personnel Command (COMNAVMILPERSCOM), are exempt from this requirement). Members should be dual processed for misconduct due to commission of a serious offense and misconduct due to civilian conviction where appropriate.

(b) Three or more punishments under the UCMJ within the current enlistment, the latest offense and counseling to have occurred while assigned to the parent command. (Separation activities defined in MILPERSMAN 3640476, and other commands to which TEMDU is authorized by COMNAVMILPERSCOM , are exempt from this requirement). Members should be dual processed for misconduct due to commission of a serious offense and misconduct due to civilian conviction where appropriate.

(c) Any combination of three minor civilian convictions misdemeanor(s) and or punishment(s) under the UCMJ within the current enlistment, the latest offense and counseling to have occurred while assigned to the parent command. (Separation activities defined in MILPERSMAN 3640476, and other commands to which TEMDU is authorized by COMNAVMILPERSCOM, are exempt from this requirement). Members should be dual processed for misconduct due to commission of a serious offense and misconduct due to civilian conviction where appropriate.

(d) Three or more periods of unauthorized absence of more than 3 days duration each within the current enlistment, the latest offense and counseling to have occurred while assigned to the parent command. (Separation activities defined in MILPERSMAN 3640476, and other commands to which TEMDU is authorized by COMNAVMILPERSCOM, are exempt from this requirement). Members should be dual processed for misconduct due to commission of a serious offense and misconduct due to civilian conviction where appropriate.

(e) Nine or more violations (e.g., specifications) of the UCMJ within the current enlistment which have been disciplined by punishment under the UCMJ. The latest offense and counseling to have occurred while assigned to the parent command. (Separation activities defined in MILPERSMAN 3640476, and other commands to which TEMDU is authorized by COMNAVMILPERSCOM, are exempt from this requirement). Members should be dual processed for misconduct due to commission of a serious offense and misconduct due to civilian conviction where appropriate.

(2) A member may also be separated for misconduct due to a pattern of misconduct as evidenced by:

(a) A set pattern of failure to pay just debts. (Include financial statement prepared as specified in MILPERSMAN 6210140.14 when case is forwarded.)

(b) A set pattern of failure to contribute adequate support to dependents or failure to follow orders, decrees or judgments of a civil court concerning the support of dependents. Include copies of court order(s), judgments, etc.

c. Commission of a serious offense. Commission of a serious military or civilian offense, if:

(1) The specific circumstances of the offense warrant separation; and,

(2) A punitive discharge would be authorized by the Manual for Courts-Martial for the same or a closely related offense. Note that:

(a) If basis for offense is evidenced by a court-martial conviction --the findings of which have been approved by the convening authority--the findings of the court-martial as they relate to the administrative discharge process (basis and reason) are binding on the administrative discharge board. See Article 3610200.5a.

(b) I basis for offense is evidence solely by a court-martial conviction and the court-martial convening authority has remitted or suspended a punitive discharge, forward case to the same convening authority for endorsement according to MILPERSMAN 3610200.5b.

(d) Civilian conviction

(1) Conviction by civilian authorities, or action taken which is equivalent to a finding of guilty, including similar adjudication in juvenile proceedings, when the specific circumstances of the offense warrant separation and, (1) a punitive discharge would be authorized for the same or closely related offense under the Manual for Courts-Martial, or (2) the sentence includes confinement for six months or more without regard to suspension or probation. In all cases, advise whether the member has appealed the conviction or not and, if not, the time limit within which member has to file a appeal. In addition, if the member has appealed, advise of its outcome or anticipated decision date.

(2) Separation processing may be initiated whether or not a member has filed an appeal of a civilian conviction or has stated an intention to do so. However, execution of an approved separation shall be withheld pending outcome of the appeal or until the time for appeal has passed, unless the Chief of Naval Operations, the Commandant of the Marine Corps, or the member has requested separation and such a requests have been approved by the Secretary of the Navy, who may direct that the member be separated before final action in the appeal.

(3) Misconduct due to civilian conviction. If member is convicted of a felony which includes a sentence to confinement for more than 1 year (whether suspended or not), or an offense involving sexual perversion, processing is mandatory.

2. Counseling and rehabilitation

a. Separation processing for a series of minor disciplinary infractions or a pattern of misconduct may not be initiated until the member has been counseled by his or her parent command concerning deficiencies and has been afforded an opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records. Only one counseling entry during the current enlistment by the parent command is required. Such efforts shall include the following and be documented in the member's service record by Page 13 entry (see NAVMILPERSCOMINST 1910.1).

(1) Written notification concerning deficiencies or impairments.

(2) Specific recommendations for corrective action indicating any assistance available.

(3) Comprehensive explanation of the consequences of failure to under take successfully the recommended corrective action.

(4) Reasonable opportunity for the member to undertake the recommended corrective action.

b. Counseling and rehabilitation are not required if the reason for misconduct separation is commission of a serious offense, civilian felony conviction or a similar juvenile adjudication.

3. Characterization or Description. Normally under Other Than Honorable Conditions, but characterization as General may be assigned when warranted. For respondents who have completed entry level status, characterization of service as Honorable is not authorized unless the respondent's record is otherwise so meritorious that any other characterization would be clearly inappropriate and the separation is approved by Commander, Naval Military Personnel Command, or higher authority. When characterization of service under Other Than Honorable Conditions is not warranted for a member in entry level status, the separation shall be described as Entry Level Separation.

4. Reduction in rate. When a service member serving in paygrade E-4 or above is administratively separated with an Other Than Honorable characterization of service, the member shall be administratively reduced to paygrade E-3, such reduction to become effective upon separation.

5. Procedures

a. The Administrative Board Procedure (MILPERSMAN 3640300) shall be used; however, use of the Notification Procedure (MILPERSMAN 3640200) is authorized for use when processing members for misconduct due to minor disciplinary infractions or if characterization of service under Other Than Honorable Conditions is not warranted as described in MILPERSMAN 3610300.3c.

b. When a member is processed for separation for a commission of a serious offense or civilian conviction, the Administrative Board Procedure (MILPERSMAN 3640300) shall be used.

c. Request that the member execute a signed statement of awareness and request for or waiver of rights after his or her receipt of the Notice of Administrative Board Procedure Proposed Action. Use the Notification Procedure (MILPERSMAN 3640200) in the case of members processed for misconduct due to minor disciplinary infractions, or misconduct due to a pattern of misconduct wherein a general discharge is deemed appropriate.

d. Forward the processed case by letter of transmittal [or message] to Commander, Naval Military Personnel Command (NMPC-83). Ensure member's full name, rate and SSN have been indicated on each page of the case. Refer to NAVMILPERSCOMINST 1910.1 for message submission option.

Note that if basis for offense is evidenced solely by a court-martial conviction and the court-martial convening authority has remitted or suspended a punitive discharge, forward case to the same convening authority for endorsement in accordance with MILPERSMAN 3610200.5.

e. Misconduct involving homosexuality shall be processed in accordance with MILPERSMAN 3630400. Misconduct involving a fraudulent entry shall be processed in accordance with MILPERSMAN 3630100. Misconduct involving drug abuse shall be processed in accordance with MILPERSMAN 3630620.

f. A member who is absent without authority may be processed under this article without returning to military control in the following circumstances:

(1) Absent without authority after receiving notice of initiation of separation processing.

(2) When prosecution of the member appears to be barred by the Statute of Limitations, Article 43 UCMJ, and the statute has not been tolled by any of the conditions set out in Article 43(d).

(3) When the member is an alien and appears to have gone to a foreign country where the United States has no authority to apprehend the member under treaty or other agreement.

g. A member of a reserve component who is on active duty and is within two years of becoming eligible for retired pay or retainer pay under a purely military retirement system, may not be involuntarily released from that duty before he or she becomes eligible for that pay, unless his or her release is approved by the Secretary of the Navy.

h. In such cases as described in subparagraphs (2) and (3) of paragraph 4f, the Notice required in either MILPERSMAN 3640200 or 3640300 shall:

(1) Specify date (not less than 30 days from the date of delivery of the notice) in order to give the member the opportunity to return to military control and, if the member does not return to military control by such a date, that the separation process shall continue.

 (2) Be sent to the member by registered mail or certified mail, return receipt requested (or by an equivalent form of notice if such service by U.S. Mail is not available for delivery at an address outside of the United States) to the member's last known address or the next of kin.

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