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NAVY | DRB | 1999_Navy | ND99-01068
Original file (ND99-01068.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND99-01068

Applicant’s Request
The application for discharge review, received 990806, requested that the characterization of service on the discharge be changed to honorable. 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 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. I feel that I should not have received this type of discharge for these reasons. My record of AWOL/UA was a minor offense. I had already been given leave for December 14, 1990. I was late returning due to a snowstorm on Friday. I decided to stay in Pittsburgh two extra days and return to the Samuel Gompers on Monday.

2. My so-called fight on the ship was untrue. On June 7, 1991 I was drunk. I came on the ship and knocked over a few lockers. The lockers were not damaged. They were placed back in there original location. There were no destruction of government property. As I walked down the hall, Seaman K___ grabbed my leg. I pull him out of his bunk playing with him. We both laughed and I went to by bunk. I was then taken to medical and placed on a drunk watch. There was no fight. No one was hit. No one went to medical with a complaint that I struck them.

3. I received no counseling from my JAG officer who talked with me for only thirty minutes. As my representative, counsel failed to include favorable information. Medals, awards, efficiency rating and etc. The JAG officer only once mentioned me remaining in the military or a possible general. I'm not sure anyone even heard him. In my opinion counsel was ineffective.

4. These were only minor offenses. To receive an OTH discharge at two years in the military was extreme. I feel the only reason for this discharge was that Desert Storm was almost over--there was a surplus of troops that were not needed and I was selected to be one that was not.

5. For these reason I was discharged. When other's aboard ship and in the Navy have done worst, they were not discharged or received Other Than Honorable discharge. I received no counseling or help of any kind from my commanding officer, Chief K___, who made a false statement to Captain A____ at my discharge saying "he often complains about getting out of the Navy."

6. I feel that it is in the best interest of justice to make a favorable decision in my case. I was never informed and unaware of any timetable as to my right to file for a discharge upgrade. As stated before, with only a little time left in the military, I feel this discharge does not fit the offense. I never had a chance to become the sailor I know I would have been or have the Honorable discharge I should have.

7. (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

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     890831 - 891112  COG

 Period of Service Under Review :
Date of Enlistment: 891113               Date of Discharge: 910829

 Length of Service (years, months, days):

         Active: 01 09 17
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 50

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 2.90 (2)                OTA: 3.00

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, NDSM

Days of Unauthorized Absence: 19

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 :

910129:  NJP for violation of UCMJ, Article 86: Unauthorized absence 901214-901231 (17days/S).
         Award: Forfeiture of $100.00 per month for 2 months, restriction and extra duty for 14 days. No indication of appeal in the record.

910202:  Retention Warning from USS SAMUEL GOMPERS (AD-37): Advised of deficiency (Violation of UCMJ, Article 86, Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910413:  NJP for violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty, to wit: deck office phone watch on 910311; and 1500 section 2 duty on 910311, violation of UCMJ Article 108: Damage berthing lockers by pushing them to the deck on 910311, violation of UCMJ Article 112: Drunk and disorderly on 910311; violation of UCMJ Article 134: Wrongfully possess a false ID Card; drinking under age of 21.
         Award: Forfeiture of $150.00 per month for 2 months, reduction to E-2. No indication of appeal in the record.
910421:  NJP for violation of UCMJ, Article 86: (7 Specs), Failed to go to appointed place of duty, to wit: Restricted Men's Muster.
         Award: Restriction to the limits of USS SAMUEL GOMPERS for 7 days. No indication of appeal in the record.
910504:  USS SAMUEL GOMPERS (AD-37) 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 all punishments under the UCMJ in your current enlistment and misconduct due to commission of a serious offense as evidenced by NJP on 910413.
910506:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
910506:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct and misconduct commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.
910722:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by all punishment under the UCMJ in your current enlistment and misconduct due to commission of a serious offense as evidenced by NJP on 910413.

910807:  NJP for violation of UCMJ, Article 86: Did absent himself from his unit 0700, 910803 to 0740, 910805 (2days/S).
         Award: Forfeiture of $100.00 per month for 1 month. No indication of appeal in the record.

910814:  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 910829 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 applicant’s issues 1-3 and 5, 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.

In response to applicant’s issue 4, the applicant had a series of minor offenses which is why the applicant received a discharge for pattern of misconduct. The applicant could have been charged with commission of a serious offense for his violation of UCMJ Article 134, for wrongfully possessing a false ID Card. Relief will not be granted on this issue.

In response to applicant’s issue 6, 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 7: (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 has not provided any documentation of good character and conduct. 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 15560C, effective 15 Aug 91 until
04 Mar 93), 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 134, for wrongfully possessing a false ID Card, 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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