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NAVY | DRB | 1999_Navy | ND99-00618
Original file (ND99-00618.rtf) Auto-classification: Denied


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

ex-GSMFA, USN
Docket No. ND99-00618

Applicant’s Request
The application for discharge review, received 990330, 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 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 OTHER THAN HONORABLE CONDITIONS/ PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.       Military brought about a negative change in me.
2.       No civilian record.
3.       Risked my life out at sea.
4.       Military offered me no help with my problem.
5.       Punishment was to severe in giving me a discharge that’s haunts me for the rest of my life.
6.       Matured a great deal since the incidents - now changed person.
7.       Military gains nothing by keeping me oppressed with an other than honorable discharge.
8.       I have two year old daughter to provide for.
9.       Positive progress went unnoticed.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from applicant (6pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     950215 - 950904  COG

 Period of Service Under Review :
Date of Enlistment: 950905               Date of Discharge: 980428

 Length of Service (years, months, days):

         Active: 02 07 24
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 58

 Highest Rate: GSMFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: NAVY"E"RIBBON, NDSM

Days of Unauthorized Absence: 7

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

970326:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ Article 134: False pretenses, obtaining services under, violation of UCMJ Article 121: Larceny (2 charges).
Award: Forfeiture of $250 per month for 2 months, extra duty for 30 days. No indication of appeal in the record.
980403:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 121- Larceny, 2 charges, Article 130 -Housebreaking, Article 134 -Obtaining under false pretenses, Article 86 -Unauthorized absence, which resulted in a finding of guilty at Non-judicial Punishment on 26 March 1997.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980410:  NJP for violation of UCMJ, Article 80: Attempts (3 specifications), violation of UCMJ Article 107: False official statement.
         Award: Forfeiture of $519 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
980413:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
980413:          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

980424:  Commanding officer recommended 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 980428 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 response to applicant’s issues 1, 3, 7, and 8, the Board does not consider these statements to be relative issues.

In response to applicant’s issue 4, the Board found in the applicant’s record that he received counseling on 980403 as a result of his NJP on 970326. The applicant was notified of corrective actions and assistance available. The Board will not grant relief on this issue.

In response to applicant’s issues 5 and 9, the applicant implies that a permissive doctrine exists whereby one in the military is allowed to commit offenses. The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant is responsible for his actions and must accept the consequences of his misdeeds. The Board will not grant relief on the basis of these issues.

In response to applicant’s issues 2 and 6, 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 in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge. Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant 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.



Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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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