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NAVY | DRB | 1999_Navy | ND99-00616
Original file (ND99-00616.rtf) Auto-classification: Denied


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

ex-SKSR, USN
Docket No. ND99-00616

Applicant’s Request
The application for discharge review, received 990331, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing discharge review before a Traveling Panel closest to Houston, Texas. The applicant did not list any 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 review prior to any personal appearance hearing.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 000201. 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 of misconduct, authority: NAVMILPERSMAN, Article 3630600.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.       My conduct and effieciency rating/behavior and proficiency marks were mostly pretty good. Aswauth [A92.02].
2.       I received awards and decorations. Aswauth [A92.04].
3.       I received letters of commendations. Aswauth [A92.06].
4.       My record of promotion showed I was generally a good service member. Awauth [A92.12].
5.       There were other acts of merit. Awauth [A92.26].
6.       I have been a good citizen since discharge. Awauth [A92.24].
7.       My record of NJP's/article 15's indicate only isolated or minor offenses. Aswauth [A92.24].
8.       My discharge was based on many offenses, but they were mostly minor offenses. Aswauth [A94.10].

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Students Schedule Bill
Copy of Academic Achievement Record
Copy of Son's Birth Certificate
Copy of Daughter's Birth Certificate
Copy of Son's Birth Certificate
Character Reference Letter (2)
Articles/Contentions Letter from applicant
Academic Status Letters (2)
Letter from applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     None

 Period of Service Under Review :
Date of Enlistment: 900917               Date of Discharge: 930312

 Length of Service (years, months, days):

         Active: 02 05 03
         Inactive: 00 00 23

 Age at Entry: 20                          Years Contracted: 8

Education Level: 12                        AFQT: 39

 Highest Rate: SKSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (3)    Behavior: 3.26 (3)                OTA: 3.13

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASMw1*, SSDR

 Days of Unauthorized Absence: None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

901010:  Ordered to active duty for 24 months under the Seaman Apprenticeship program.

920324:  Retention Warning from USS SAVANNAH (AOR 4): Advised of deficiency (Violation of UCMJ, Art 91, willful disobedience toward petty officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920324:  NJP for violation of UCMJ, Article 91: Willful disobedience toward petty officer.
Award: Forfeiture of $250 per month for 1 months. No indication of appeal in the record.
920430:  NJP for violation of UCMJ, Article 91: Disrespect toward petty officer.
Award: Rest and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.
920708:  NJP for violation of UCMJ, Article 86: Absent from unit, violation of UCMJ Article 91: Failure to obey a lawful order, violation of UCMJ Article 121: Wrongful appropriation.
Award: Extra duty for 30 days, reduction to E-1 (reduction to E-1 suspended for 6 months). No indication of appeal in the record.
921001:  NJP for violation of UCMJ, Article 86: Absence from unit.
Award: Forfeiture of $100 per month for 1 months, extra duty for 15 days. No indication of appeal in the record.
921202:  NJP for violation of UCMJ, Article 86: Absent from unit, violation of UCMJ Article 91: Willful disobedience of petty officer, violation of UCMJ Article 112: Drunk on duty.
Award: Extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
921208:  USS SAVANNAH (AOR-4) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
921215:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

921223:  NJP for violation of UCMJ, Article 90: Willfully disobeying superior commissioned officer; violation of UCMJ Article 86: Absent from unit.
         Award: Restriction and extra duty for 5 days. No indication of appeal in the record.
930129:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge general under honorable conditions.

930211:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

930308:  BUPERS directed the applicant's discharge general under 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 930312 under honorable conditions (general) 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).

Regarding the applicant’s first five issues, it is the Board’s responsibility to review the applicant’s entire service record. The NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted. 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. Relief denied.

Regarding the applicant’s last two issues, the Board determined that the offenses the applicant was discharged for were not minor. Article 90 and 91 are offenses under the UCMJ for which a person can receive a punitive discharge (a bad conduct discharge or a dishonorable discharge). The applicant was found guilty at Captain’s Mast on four separate occasions for one of these offenses. These are included in a string of offenses leading up to the applicant’s discharge including five different Captain’s Masts over an eight month period. To conclude that these offenses were minor or isolated is incorrect. The Board determined that the applicant’s discharge was proper and equitable.

In the applicant’s sixth issue, he asks the Board to consider his post-service conduct in assessing the merits of his application. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). However, 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, is considered. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of 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. He 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. Relief denied.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 5, effective 05 Mar 93 until 21 Jul 94), 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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