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NAVY | DRB | 1999_Navy | ND99-01178
Original file (ND99-01178.rtf) Auto-classification: Denied


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

ex-MMFR, USN
Docket No. ND99-01178

Applicant’s Request
The application for discharge review, received 990903, 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 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 – frequent involvement of a discreditable nature with civil or military authorities, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. I served 3 yrs 3 mos and 28 days, in-which 2 yrs and 10mos and 28 days were sea service. Inactive service 2mos and 21 days. Unfortunate my marriage and the military did not mix. I don't think the Navy was properly equip in counseling me at the time my wife left my 2yr old daughter and me in California while I was on active duty. My young age and inexperience with personal situations unfortunately out weighed my better judgement and my responsibility to the US Navy. I don't think my Commanding Officer took in consideration neither my situation nor my time of service and remain time (approx. 8 mos).

 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: None
         Inactive: USNR (DEP)     820128 - 820418  COG

 Period of Service Under Review :
Date of Enlistment: 820419               Date of Discharge: 851114

 Length of Service (years, months, days):

         Active: 03 06 26
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 10                        AFQT: 38

 Highest Rate: MMFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.85 (4)    Behavior: 2.70 (4)                OTA: 2.88

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 88

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern – frequent involvement of a discreditable nature with civil or military authorities, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

820715:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 1900, 2Jul82 to 0530, 6Jul82 (3 days), violation of UCMJ Article 113: Misbehavior of sentinel to wit: being posted as a sentinel did leave his post before he was regularly relieved on 0530, 6Jul82.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 10 days. No indication of appeal in the record.
820715:  Counseling: Advised of deficiency (concerning my deficiencies in military behavior), notified of corrective actions and assistance available.

840208:  NJP for violation of UCMJ, Article 95: Resisting apprehension, violation of UCMJ Article 116: Engaging in a fist fight, violation of UCMJ Article 128: Assault.
         Award: Restriction and extra duty for 10 days, reduction to MMFA. Reduction suspended for 6 months. No indication of appeal in the record.
841016:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence 0700, 17Sep84 to 1400, 21Sep84 (4 days/surrendered), (2) Unauthorized absence 1245, 1Oct84 to 1235, 3Oct84 (1 day/ surrendered).
         Award: Restriction and extra duty for 25 days, reduction to MMFA. Reduction suspended for 6 months. No indication of appeal in the record.
841016:  Retention Warning from USS BARNEY (FF 1088): Advised of deficiency (You have incurred military infractions for which you were punished under the Uniform Code of Military Justice. In addition, your performance to date has not been considered satisfactory due to your continued involvement of a discreditable nature with military authorities.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

850121:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 0700, 27Dec84 to 1523, 27Dec84 (8 hours and 23 minutes).
         Award: Forfeiture of $50 per month for 1 month, restriction and extra duty for 10 days. No indication of appeal in the record.
850701:  Applicant to unauthorized absence, 0500, 1Jul85.

850706:  Applicant from unauthorized absence 2335, 6Jul85 (5 days/surrendered).

 850710:  NJP for violation of UCMJ, Article 87: Miss movement of ship on 1Jul85.
         Award: Forfeiture of $50 per month for 2 months, restriction and extra duty for 25 days, reduction to MMFA. Reduction suspended for 6 months. No indication of appeal in the record.
850812:  Applicant missed sailing of vessel.

 850904:  Applicant declared a deserter. Unauthorized absence since 0700, 5Aug85.
851024:  Vacated suspension of reduction in rate from NJP of 850710.

851024:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700, 5Aug85 until 2150, 19Oct85 (75 days).
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
851030:  USS BARBEY (FF 1088) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct- pattern – frequent involvement of a discreditable nature with civil or military authorities as evidenced by six nonjudicial punishments within your current enlistment, the latest while assigned to this command.
851030:  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.
851031:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct – pattern - frequent involvement of a discreditable nature with civil or military authorities.

851107:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct - pattern – frequent involvement of a discreditable nature with civil or military authorities.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 851114 under other than honorable conditions for misconduct pattern frequent involvement of a discreditable nature with civil or military authorities (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 the applicant’s issue 1, the Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his immaturity was a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.
The applicant was convicted at NJP on six separate occasions and was given a counseling and retention warning as an opportunity to improve his performance. 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.

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. Navy Military Personnel Manual, (NAVPERS 15560, Change 10/84, effective
17 Sep 84 until 15 Dec 85), Article 3630600, SEPARATION OF ENLISTED MEMBERS 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 [e.g., 86, for unauthorized absence for a period in excess of 30 days] 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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