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NAVY | DRB | 1999_Navy | ND99-01039
Original file (ND99-01039.rtf) Auto-classification: Denied


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

ex-OSSR, USN
Docket No. ND99-01039

Applicant’s Request
The application for discharge review, received 990728, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000417. 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. FIRST ISSUE INVOLVES CLOSING REVIEW BOARD JUNE 2, 1998, ONE MEMBER VOTED FOR GENERAL DISCHARGE DUE TO THE FACT THAT OFFENSES DID NOT WARRANT AN OTHER THAN HONORABLE CHARACTER OF DISCHARGE.

2. ISSUE INVOLVING THE FACT THAT BRIG TIME AT CAMP PENDLETON MARINE BASE WAS INSTITUTED AS DISCIPLINE, WAS AN OTHER THAN HONORABLE DISCHARGE ALSO USED AS DISCIPLINE? WHAT IS A PROPER DISCIPLINE MEASUREMENT FOR VIOLATION OF UCMJ? WAS THE DISCIPLINE FIT?

3. AFTER BRIG TIME CHAIN OF COMMAND RECOGNIZED CHANGE IN BEHAVIOR, A REPENTENT ATTITUDE, AND WAS RECOGNIZED BY CHAIN OF COMMAND, "AS A MOTIVATED SAILOR WITH OUTSTANDING MILITARY BEARING ALL OF WHICH IS EVIDENT BY CHAIN OF COMMAND CHARACTER REVIEW AT ADMINISTRATIVE BOARD.

4. INDIVIDUAL BEING REVIEWED HAS AN AMAZING WANT AND DRIVE TO FULFILL ENLISTMENT. PLEASE HELP INDIVIDUAL WHO HAS LEARNED FROM MISTAKES AND HAS THE ABILITY TO BECOME AN OUTSTANDING ASSET TO HIS DIVISION FULFILL HIS OATH.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
CO, USS ANTIETAM ltr dtd 15 May 98 concerning appointment of admin board (2 copies)
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     960626 - 961117  COG

 Period of Service Under Review :
Date of Enlistment: 961118               Date of Discharge: 980709

 Length of Service (years, months, days):

         Active: 01 07 22
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 47

 Highest Rate: OSSA (E-2)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 2.00 (2)                OTA: 2.67 (5.0 eval)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSR

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 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

980109:  NJP for violation of UCMJ, Article 121: larceny.
         Award: Forfeiture of $100 per month for 1 month, reduction to E-1. No indication of appeal in the record.

980401:  NJP for violation of UCMJ, Article 121: theft of government property on 30 Mar98.
         Award: Restriction and extra duty for 14days. No indication of appeal in the record.
980401:  Retention Warning: Advised of deficiency (failed to report for duty abroad USS ANTIETAM as directed, resulting in an unauthorized absence of two days, a violation of the UCMJ, Article 86), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980410:  Retention Warning: Advised of deficiency (your misconduct due to theft of government proper on 30 Mar 98), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980413:  NJP for violation of UCMJ, Article 134: communicating a threat; violation of UCMJ Article 134: obstruction of justice.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 3 days, reduction to E-1. No indication of appeal in the record.
980416:  Summary Court Martial
                  Violation of UCMJ, Article 92: failure to obey a lawful order.
          Violation of UCMJ, Article 134: communicating a threat toward a
senior Petty Officer.
Sentence: Confinement 30 days, forfeiture of $771.00 per month for
1 months.
CA 980416: Sentence approved and ordered executed. Marine Corps
Brig, Camp Pendleton, CA designed as place of confinement.
SJA 980511: Found the court had jurisdiction and the sentence is legal.
980429:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

980429:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
980605:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, supports reason of misconduct due to commission of a serious offense and supports reason misconduct due to a pattern of misconduct, that the misconduct for commission of a serious offense and a pattern of misconduct warranted separation. By a vote of
2-1, board recommended discharge under other than honorable conditions for misconduct due to commission of a serious offense. By unanimous vote (3-0), the board recommended discharge under other than honorable for misconduct due to a pattern of misconduct.

980623:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of serious offense and misconduct due to a pattern of misconduct. Commanding officer’s comments (verbatim): "I strongly agree with the Board's findings and recommend that OSSR (Applicant) be administratively discharged from the naval service by reason of his misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct, and that the characterization of his discharge be under Other Than Honorable conditions. OSSR (Applicant)'s unstable demeanor make him a threat to both his peers and superiors. He repeatedly demonstrates poor judgment and that he has no potential for continued service. In only a short time, he has become a disciplinary burden to the entire chain of command. An Other than Honorable Discharge is appropriate for this individual."

980628:  COMCARGRU THREE 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 980709 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 the applicant’s issues 1 and 3, the Board found that one member of the administrative board did not vote for an other than honorable characterization for misconduct due to a serious offense only, but that it was a unanimous vote for separation due to misconduct for pattern of misconduct with a characterization of other than honorable. In addition, the ADB only makes a recommendation to the Commanding Officer, who made his own recommendation to COMCARGRU THREE. COMCARGRU THREE as the separation authority took the applicant’s service record into account, in addition to the recommendations from the CO and the ADB.
The fact that the applicant had a “repentant attitude” is irrelevant to the fact that there was misconduct by the service member and that he was discharged for that misconduct. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. No Relief is warranted.

The applicant questions in issue 2 whether the other than honorable discharge was used as a discipline and if it was proper. The Board found the other than honorable characterization was proper and equitable. Within one year and 7 months, the applicant had 3 NJPs and a Summary Court Martial. He was also given 2 retention warnings as an attempt to correct any deficiencies. This characterization merely characterizes his time in the service which is accurately characterized as having been performed under other than honorable conditions. Relief is not warranted.

The Board has no obligation to change the applicant’s discharge in order to allow him to reenlist. No relief will be granted on the basis of this issue.

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 (D). 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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