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NAVY | DRB | 1999_Navy | ND99-01065
Original file (ND99-01065.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND99-01065

Applicant’s Request
The application for discharge review, received 990803, 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 000420. 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. There are 2 reason why I believe my discharge should be changed. The first is that I did not graduate high school or have a GED before entering. When I tried to tell the recruiter this, he told me it was to late and I already signed the papers and could not get out of it. It is my understanding that I needed a diploma or GED to enter the service, therefore, I should never have been in.

2. The second reason it should be changed is because the Navy broke the contract of my rate midway through training it was decided to change the job that my rate did, so it was not the same job I signed up for. When I brought that to the attention of the commanding officer, his reply was the same as the recruiters, tough, it is to late, you signed the paper and to late now. So I started rebelling to get heard on the issue, I now know they way I went about it was wrong. I do not believe that my entire life should be ruined for the mistakes I made as a kid, I was 17 when I entered and had no goals or direction. I have these now. I am in college and doing well. I appreciate your time given to this matter.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of High School Diploma

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     881026 -890814   COG

 Period of Service Under Review :
Date of Enlistment: 890815               Date of Discharge: 900814

 Length of Service (years, months, days):

         Active: 00 11 23
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 77

 Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB                  Behavior: 2.80 (1)                OTA: 2.80

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 8

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 :

900118:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward a petty officer on 900105, violation of UCMJ Article 92: (2 Specs), Specs 1: Failure to obey a lawful order/regulation on 900105 by failing to report to the school officer after class, Spec 2: Failure to obey lawful order/regulation on 900105 by failing to shave his face prior to reporting for school.
         Award: Correctional custody for 7 days. No indication of appeal in the record.

900118:  Retention Warning from Naval Air Technical Training Center, Naval Air Station, Memphis, Millington, TN: Advised of deficiency (Violation of UCMJ, Articles, 91 and 92), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900328:  NJP for violation of UCMJ, Article 86: (5 Specs), Spec 1: UA from appointed place of duty on 900119, Spec 2: UA from 0900, 900120 until 0500, 900122 (1days/S), Spec 3: UA from 1345, 900122 until 0500, 900123, Spec 4: Failure to go at time prescribed to appointed place of duty on 900212, Spec 5: UA from 0630, 900223 until 0820, 900227 (4days/S); violation of UCMJ, Article 92: (8 Specs), Spec 1: failure to obey a lawful order/regulation on 900122 by wrongfully driving his automobile to school; Spec 2: failure to obey a lawful order/regulation on 900122 by wrongfully failing to get a haircut and shave; Spec 3: failure to obey a lawful order/regulation on 900123 by wrongfully sleeping in class; Spec 4: failure to obey a lawful order/regulation on 900123 by wrongfully failing to have a satisfactory haircut; Spec 5: failure to obey a lawful order/regulation on 900122 by willfully disobeying an order issued by a chief petty officer to get a hair cut; Spec 6: failure to obey a lawful order/regulation on 900302 by failure to get a haircut; Spec 7: failure to obey a lawful order/regulation on 900306 by wrongfully wearing civilian attire without a Naval Air Technical Training Center Special Privileges Card; Spec 8: failure to obey a lawful order/regulation on 900306 by wrongfully disobeying an order issued by a first class petty officer to get a haircut; violation of UCMJ, Article 107: False official statement by saying "I need to check out of restriction today because I'm having surgery on Monday" which was know to be false by SNM; violation of UCMJ, Article 115: Malingering; SNM did on 900302 for he purpose of avoiding service as an enlisted person feign illness.
         Award: Correctional Custody for 30 days, forfeiture of $362.00 per month for 1 month. No indication of appeal in the record.
900705:  NJP for violation of UCMJ, Article 86: UA from 900518 to 900521(3days/S).
Award: Forfeiture of $362.00 per month for 1 month, restriction and extra duty for 45 days. No indication of appeal in the record.
900709:  Naval Air Technical Training Center, Millington notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense in violation of Articles 91, 92, 107, and 115, of the UCMJ, and misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ during your current enlistment.
900709:          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.
900718:  Commanding officer recommended 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

900730:  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 900814 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).

In response to issue 1, the Board found a signed statement in the applicant’s Record of Military Processing that stated the applicant was urged to stay in school and graduate if possible prior to enlisting. A diploma is not a pre-requisite to entering the armed forces. Relief will not be granted on this issue.
In response to issue 2, 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 its issuance, and that his rights were prejudiced thereby. Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant.

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) and certification of non-involvement with civil authorities (police records check) in order for consideration for clemency based on post-service conduct. At this time, the applicant has provided only a high school diploma as 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 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 115, for malingering, 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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