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NAVY | DRB | 1999_Navy | ND99-01129
Original file (ND99-01129.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND99-01129

Applicant’s Request
The application for discharge review, received 990819, 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 000512. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an impropriety and inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall change to: GENERAL(UNDER HONORABLE CONDITIONS)/SECRETARIAL PLENARY AUTHORITY, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600) AND 3630900.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. During the two years I served in the United States Navy I had lots of problems at home. My wife and me were going through some hard times. I regret everything wrong I've done to ruin my civilian life and my military back ground. I was a very good deck seaman way above average as my records show but the stress back at was taking its tow on me making it hard to deal with the military. I'm so sorry for my mistakes and I hope my service record help people see that the discharge that was receiving was too harsh.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from applicant's wife dated December 6, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     960917 - 961016  COG

 Period of Service Under Review :
Date of Enlistment: 961017               Date of Discharge: 981030

 Length of Service (years, months, days):

         Active: 02 00 14
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 32

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                           Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, SSDR, BEA

 Days of Unauthorized Absence: 43

 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 :

980402:  NJP for violation of UCMJ, Article 86: Unauthorized absence 0714, 27Feb98 to 1835, 6Mar98 (7 days).
         Award: Forfeiture of $500 per month for 2 months, restriction and extra duty for 30 days, reduction to SR. Forfeiture and reduction suspended for 6 months. No indication of appeal in the record.
980618:  NJP for violation of UCMJ, Article 86: Unauthorized absence 4May to 5Jun98 (32 days), violation of UCMJ Article 87: Missing movement. No further information found in service record.

980919:  NJP for violation of UCMJ, Article 86: Unauthorized absence 0715, 8Sep98 to 2330, 12Sep98 (4 days/surrendered).
         Award: Forfeiture of $450 per month for 2 months, restriction for 60 days. No indication of appeal in the record.
980919:  Counseling and Warning: No further information found in service record. [Extracted from CO's letter dated 7 October 1998.]

980924:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by violation of UCMJ Article 86 (Unauthorized Absence) on 2 April 1998, Article 86 (Unauthorized absence) and Article 87 (Missing Movement) on 18 June 1998, and Article 86 (Unauthorized absence) on 19 September 1998.
980924:  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

981007:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

981020:  COMNAVSURFPAC San Diego, CA 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 981030 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 inequitable and improper (C and D).

The Board found that the applicant’s discharge of misconduct due to pattern of misconduct was improper based on the fact that there was no retention warning given to the applicant until after the third NJP. Therefore the applicant was not in violation of a
NAVPERS 1070/613, which is required for a pattern of misconduct. A discharge of misconduct due to commission of a serious offense would have been more appropriate based on the member’s UA of greater than 30 days and missing movement. The Board found that the applicant was not dual processed for commission of a serious offense, and therefore voted to grant relief. The characterization shall change to General (under honorable conditions) and the narrative reason shall be Secretarial Plenary Authority.

 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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