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NAVY | DRB | 1999_Navy | ND99-00914
Original file (ND99-00914.rtf) Auto-classification: Denied


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

ex-AMSAR, USN
Docket No. ND99-00914

Applicant’s Request
The application for discharge review, received 990625, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Secretarial Authority. The applicant requested a documentary record discharge review. The applicant listed AMERICAN LEGION as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000411. 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 3630600.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (EQUITY ISSUE) His violation 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 his narrative reason for discharge be amended to Secretarial Authority.

3. (EQUITY ISSUE) This former member finally requests that the Board include provision 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:
Copy of DD Form 214
Statement in Support of Claim
Copy of Report and Disposition of Offense (3pgs)
Copy of Fraudulent Enlistment Waiver Statement
Copy of Order of Acquittal/Dismissal from State of Michigan 88 th District Circuit Court (2pgs).
Copies of Discharge Documents (7pgs)
Copy of Evaluation Report & Counseling Report
Copy of Letter of Appreciation
Copy of Business Registration Certificate
Copy of Appointment of Veterans Service Organization as Claimant's Representative

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               None
         Inactive: USNR (DEP)     941118 - 950221  COG

 Period of Service Under Review :
Date of Enlistment: 950222               Date of Discharge: 960613

 Length of Service (years, months, days):

         Active: 01 03 22
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

Education Level: 12                        AFQT: 78

 Highest Rate: AMSAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, AFSM

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

951005:  Chief of Naval Personnel letter notifying Officer in Charge, Personnel Support Activity Detachment, Jacksonville to process applicant for fraudulent enlistment for failing to claim full arrest record on the DD-398-2 submitted 941117 and on the DD 1966 dated 950222 on file at BUPERS.
951128:  Commanding Officer, Patrol Squadron EIGHT waiver request for applicant for failure to claim an arrest prior to service on his DD-398-2 and DD 1966.

960124:  BUPERS retention warning for defective enlistment and induction due to failure to disclose your arrest on 930105 for carry a concealed weapon.

960215:  Retention Warning from [Patrol Squadron EIGHT]: Advised of deficiency (In spite of your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your arrest on 930105 for carrying a concealed weapon), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960308:  NJP for violation of UCMJ, Article 86: Failed to go to appointed place of duty.
         Award: Forfeiture of $189.00 per month for 1 month, extra duty for 18 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.

960311:  Retention Warning from [Patrol Squadron EIGHT]: Advised of deficiency (Violation of the UCMJ, Article 86, Failure to go to appointed place of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960328:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty.
         Award: Vacation of prior suspension of reduction to E-1, forfeiture of $189.00 per month for 1 month, extra duty for 30 days. No indication of appeal in the record.

960329:  Retention Warning from [Patrol Squadron EIGHT]: Advised of deficiency (Violation of the UCMJ, Article 86, Failure to go to appointed place of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960417:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty, violation of UCMJ Article 92: Failure to obey a lawful order.
Award: Forfeiture of $437.40 per month for 1 month, extra duty for 30 days. No indication of appeal in the record.
960418:          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.
960513:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to a Pattern of misconduct. Commanding officer’s comments (verbatim): AMSAR (Applicant) has shown that he is unable to meet the standards of conduct which are integral to naval service. He has received three non-judicial punishments for unauthorized absence offenses and failure to obey other lawful orders. AMSAR (Applicant’s) chain of command has made every effort to assist this sailor in correcting his deficiencies. Several counseling sessions have been performed by the member’s seniors. Of note, AMSAR (Applicant) was granted a waiver for fraudulent enlistment and has not made good on the opportunity granted by the Bureau of Naval Personnel (Enclosure (3)). After being fully advised of his right to an Administrative Discharge Board, AMSAR (Applicant) waived this right. I recommend that AMSAR (Applicant) be separated with an Other Than Honorable characterization of service.

960603:  BUPERS 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 960613 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 the applicant’s issue 1, the Board determined this issue is without merit. The applicant claims his otherwise creditable service warrants separation under Honorable conditions. The applicant received three non-judicial punishments for unauthorized absence offenses and failure to obey other lawful orders. His chain of command made every effort to assist him in correcting his deficiencies. Three counseling sessions were documented by the member’s seniors, in addition to receiving a waiver for fraudulent enlistment. After being fully advised of his right to an Administrative Discharge Board, the applicant waived this right. The Board fails to recognize any creditable service in the applicant’s abbreviated enlistment. The discharge was proper and equitable. Relief denied.

In the applicant’s issue 2, the Board determined this issue is without merit. The applicant request’s that the narrative reason for discharge be amended to Secretarial Authority. The applicant has provided no basis for the Board to comply with his request. Relief denied.

In the applicant’s issue 3, the Board determined this issue is without merit. The applicant provided no documentation for the Board to upgrade his discharge based on his post-service conduct. The discharge was proper and equitable. Relief denied.

The following is provided for the applicant’s benefit. 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, subsequent to leaving military service. The NDRB reviews the propriety (did the Navy follow its own rules in processing the applicant for discharge) and equity (did the applicant receive a discharge characterization in keeping with Navy guidance or was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge to determine if proper procedures were followed. This applicant’s discharge was proper and equitable . Additionally, the NDRB is authorized to award clemency for post-service factors (what has the applicant done since discharge to become a contributing member of his/her community and to society in general). Those factors include but are not limited to the following: Evidence of continuing educational pursuits (transcripts, diploma, degree or vocational-technical certificates), a verifiable employment history (letter of recommendation from employer), documentation of community service (letter from activity/community group), certificate of non-involvement with civil authorities (police records check) and proof of not using drugs (detoxification certificate). The applicant did not provide any documentation of good character or conduct, which would warrant an upgrade to his discharge. The applicant is encouraged to establish a reputation of good character and document his accomplishments. Documentation to support any claim of good character is a must to receive any consideration based on post-service achievements . He remains eligible for a personal appearance hearing, to discuss his post-service accomplishments, provided an application is received by the NDRB within fifteen years from the date of his discharge. Legal representation at the hearing is advisable.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective
22 Jul 94 until 02 Oct 96), 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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