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NAVY | DRB | 1999_Navy | ND99-01104
Original file (ND99-01104.rtf) Auto-classification: Denied


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

ex-DCFN, USN
Docket No. ND99-01104

Applicant’s Request
The application for discharge review, received 990817, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Nashville, TN. The applicant listed AMERICAN LEGION as his representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing

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

 1. My discharge was inequitable because it was to harsh for the prevailing conditions.

2: (EQUITY ISSUE) As the documentary evidence of record supports, this former member opines that his post-service conduct has been sufficiently creditable to warrant the Board's clemency relief as authorized under provision of SECNAVISNT 5420.174C, enclosure (1), paragraph 9.3.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copies of Enlisted Performance Evaluation Reports (10pgs)
Letter from applicant to Commander C____
Copy of Report and Disposition
Copy of Letter of Participation in Operation Desert Shield/Storm
Copy of Orders
Copy of College Transcript
Copy of Certificate of Completion for Industrial Fire Hazards
Copy of Certificate of Completion for Fundamentals of Fire Prevention & Inspection
Copy of Fire Inspector Certification
Copy of Fire Extinguishers Examination Results
Copy of Certificate of Completion for Fixed Fire Extinguisher System State Examination
Letter for Appreciation from Honorable J. C___ S____ Circuit Judge
Copy of Juror's Certificate
Copies of Employment Reference Letters (3)
Copy of Police Record Check
Copies of Character Reference Letters (2)


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     890624 - 891010  COG

 Period of Service Under Review :
Date of Enlistment: 891011               Date of Discharge: 930108

 Length of Service (years, months, days):

         Active: 03 02 28
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 79

 Highest Rate: DC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.16 (5)    Behavior: 3.44 (5)                OTA: 3.44

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NUC, BATTLE"E"RIBBON, NDSM, SASM, KLM, JMUAwb*

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 :

900721:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ Article 90: Disobeying Superior Commission Officer, violation of UCMJ Article 107: False Official Statement.
         Award: Forfeiture of $405.00 per month for 1 month, restriction and extra duty for 30 days, reduction to E-2 (suspended for 2 months). No indication of appeal in the record.

920131:  Retention Warning from [USS KIDD (DDG-993)]: Advised of deficiency (Violation of UCMJ, Article 86, Unauthorized absence, and violation UCMJ, Article 86, Failing to go to place of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920131:  NJP for violation of UCMJ, Article 86: (2 Specifications) Failing to go to place of duty, violation of UCMJ Article 86: Unauthorized absence.
         Award: Forfeiture of $483.00 per month for 2 months, restriction and extra duty for 30 days, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.

921015:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of $501.00 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
921104:  Civilian Conviction at U.S. District Court, Eastern District of Virginia for driving under the influence.
         Sent: Suspension of driver license for six (6) months, and six (6) months probation.

921104:  [Transient Personnel Unit, Norfolk] notified applicant 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 as evidenced by service record entries.
xxxxxx:          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.
921130:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

921216:  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 930108 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).

The Board disagreed with the applicant’s first issue. The applicant’s misconduct included five instances of unauthorized absence, one instance of disobeying a superior commissioned officer, one instance of false official statement, and a civilian conviction for driving under the influence. After the applicant’s second NJP, he was warned that further misconduct could result in his administrative separation. The applicant chose to ignore this retention warning and was subsequently discharged. The Board considered this discharge proper and equitable.

 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 (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 laudable post-service. At this time the applicant has not provided sufficient documentation of good character and conduct such as to outweigh his misconduct. Therefore no relief will be granted. He is encouraged to continue with his pursuits, particularly community service, 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. 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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