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NAVY | DRB | 1999_Navy | ND99-00961
Original file (ND99-00961.rtf) Auto-classification: Denied


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

ex-CECR, USN
Docket No. ND99-00961

Applicant’s Request
The application for discharge review, received 990709, requested that the characterization of service on the discharge be changed to honorable or 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 000331. 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. Member submitted numerous requests for "Early out" request prior to and during "pattern of misconduct". All requests were denied!
Command made it a point to do everything they could to accuse member of every misc. infraction they could find and made it very timely to discharge member only 8 weeks prior to normal end of enlistment date.

Today - Member is a very productive member of society and is also part owner in a transportation company which transports equipment and materials across the U.S.

Member would also like to thank the U.S. Navy for all it has installed in me, like prior, respect, honor, and discipline. Thank you


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
One page of enlistment/reenlistment document
Statement from applicant dated June 23, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     881119 - 890212  COG

 Period of Service Under Review :
Date of Enlistment: 890213               Date of Discharge: 931119

 Length of Service (years, months, days):

         Active: 04 09 07
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4 (12 months extension)

 Education Level: 10                        AFQT: 65

 Highest Rate: CECR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.07 (6)    Behavior: 3.20 (6)                OTA: 3.17

 Military Decorations: None

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

 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 :

910626:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Absent from morning colors on 0645-0815, 27Jun91 from morning colors, (2) Absent from morning colors on 0700-0745, 9Jul91.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 15 days, reduction to CECA. Reduction suspended for 6 months. No indication of appeal in the record.
921010:  NJP for violation of UCMJ, Article 86 (3 specs): Unauthorized absence 0530-0745, 21Sep92, 0620-0640, 30Sep92 and 0530-0900,1Oct92.
         Award: Restriction and extra duty for 30 days, reduction to CECA. Reduction suspended for 6 months. No indication of appeal in the record.
921016:  Retention Warning from NMCB 133: Advised of deficiency (Continued instances of unauthorized absence, disrespect to a petty officer and failure to obey a lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. [Extracted from CO's message dated 18Oct93.]
930913:  NJP for violation of UCMJ, Article 86: Absent from appointed place of duty on 10Sep93 and 13Sep93.
         Award: Forfeiture of $100 per month for 1 month, restriction for 60 days, reduction to CECA. No indication of appeal in the record.
931007:  NJP for violation of UCMJ, Article 86 (3 specs): Unauthorized absence on 27Sep93, 29Sep93, and 2Oct93, violation of UCMJ Article 91: Disrespect to a petty officer on 29Sep93, by calling him "fatass", violation of UCMJ Article 92 (3 specs): Disobey a lawful order to complete PT on 28Sep93 and 30Sep93 and refused to do a job as ordered on 29Sep93.
         Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 45 days, reduction to CECR. No indication of appeal in the record.
931014:  NMCB 133 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 four punishments under the UCMJ within the current enlistment. [Extracted from CO's message dated 18Oct93.]

931014:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to submit a statement and waive all other rights. [Extracted from CO's message dated 18Oct93.]
931018:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Commanding officer’s comments (verbatim): CECR (applicant) reported to this command on a downward slide. He improved briefly and then his performance once again took a sharp drop. He is an administrative burden to this command. CECR (applicant) has been formally counseled on 13 separate occasions. Although he is capable of doing his job, CECR (applicant) spends most of his time questioning authority and making excuses for his lapses. Accordingly, separation from the naval service with a discharge characterized as under other than honorable conditions is clearly warranted and strongly recommended.

931029:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

931104:  NJP for violation of UCMJ, Article 91: Disrespect to a petty officer on 15Oct93, violation of UCMJ, Article 92: Fail to obey a lawful order on 14Oct93; violation of UCMJ, Article 117: Use provoking words on 1Nov93, violation of UCMJ, Article 128: Assault consummated by a battery on 1Nov93.
         Award: Forfeiture of $407 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 931119 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).

Responding to the applicant’s first issue, the Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion, associated with his discharge at the time of issuance, and that his rights were prejudiced thereby. Furthermore, the applicant presented no evidence to show that he should not be held accountable for his actions. Relief is therefore denied.

 The applicant’s submitted the following as issue 2: (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to 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 provided no documentation of his post-service. The applicant's efforts need to be more encompassing. The applicant should have produced evidence of continuing educational pursuits, 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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