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NAVY | DRB | 1999_Navy | ND99-00994
Original file (ND99-00994.rtf) Auto-classification: Denied


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

ex-SA, USNR
Docket No. ND99-00994

Applicant’s Request
The application for discharge review, received 990720, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed the 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/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. (EQUITY ISSUE) His violations 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 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.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of a Death Certificate
Certificate of License dated August 11, 1991
Certificate of Achievement dated October 9, 1998

PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 860827               Date of Discharge: 880615

 Length of Service (years, months, days):

         Active: 01 07 24
         Inactive: 00 01 25

 Age at Entry: 17                          Years Contracted: 8

 Education Level: 12                        AFQT: 32

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.90 (2)    Behavior: 2.50 (2)                OTA: 2.90

 Military Decorations: None

 Unit/Campaign/Service Awards: None

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 :

870330:  NJP for violation of UCMJ, Article 138: Unlawfully strike FR in the face with his fist.
         Award: Restriction for 14 days. No indication of appeal in the record.
870415:  NJP for violation of UCMJ, Article 121: Wrongfully appropriated a radio, property of MM2 on 6Mar87, violation of UCMJ Article 107: False official statement to MAC on 6Mar87.
         Award: Correctional custody for 30 days. No indication of appeal in the record.
870416:  Retention Warning from USS MISSISSIPPI (CGN 40): Advised of deficiency (Wrongful appropriation of a radio and a false official statement.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

870812:  Retention Warning from USS MISSISSIPPI (CGN 40): Advised of deficiency (Disrespectful language towards a superior commissioned officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

870921:  NJP for violation of UCMJ, Article 86 (3 specs): Unauthorized absence (1) 0530-0620, and (2) 1330-1335 on 12Sep87 and (3) 0720-0845, 13Sep87,violation of UCMJ Article 91 (3 specs): (1) Disobeyed a lawful order from FC2, (2) Disobeyed a lawful order not to eat due because he had already missed his opportunity, (3) Disobeyed a lawful order to turn his liberty card.
         Award: Forfeiture of $150 per month for 1 month, restriction for 14 days. Forfeiture suspended for 6 months. No indication of appeal in the record.
871007:  Retention Warning from USS MISSISSIPPI (CGN 40): Advised of deficiency (Unauthorized absence (3 specs), disobeyed a lawful order (3 specs).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
880512:  NJP for violation of UCMJ, Article 86 (3 specs): Absent from place of duty from 0800-1035, 28Apr88, 1130-1230, 3May88, and 1430, 8May88-0047, 9May88, violation of UCMJ Article 92: Disobeyed a lawful order not to lay in his rack with his dungarees on, violation of UCMJ Article 115: Member avoided service by feigning to go to dental.
         Award: Forfeiture of $300 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.

880516:  USS MISSISSIPPI notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct [Extracted from CO's message dated 20 May 1988.]
880516:  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. [Extracted from CO's message dated 20 May 1988.]

880520:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

880526:  CNMPC 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 880615 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

 The applicant’s representative submitted the following as issue 1: (EQUITY ISSUE) His violations of the UCMJ notwithstanding, this former member opines that his otherwise creditable service period is sufficient to warrant separation under honorable conditions.
The Board recognizes that serving in the Navy is very challenging to both the Sailor and his family members. Our country is fortunate to have men and women willing to endure the hardships and make the sacrifices required to serve their country. It must be noted that most Sailors serve honorably and well, and therefore, earn their honorable discharges. The applicant's service is accurately characterized as having been performed under other than honorable conditions. Relief is not warranted.

 The applicant’s representative 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. 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 two certificates as documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. 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 15560A, effective 870615 - 890110), Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT.

B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 121, for wrongful appropriation, if adjudged at a Special or General Court-Martial.
C. 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.

D. 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.

E. 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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