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NAVY | DRB | 2000_Navy | ND00-00086
Original file (ND00-00086.rtf) Auto-classification: Denied


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

ex-DPSR, USN
Docket No. ND00-00086

Applicant’s Request
The application for discharge review, received 991019, requested that the characterization of service on the discharge be changed to honorable. 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 000720. 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. My discharge was ill-awarded considering that I did serve admirably in harrowing circumstances in combat situation in the Persian Gulf.

2. My discharge was inequitable because it robbed me of the use of the G.I. Bill for education to which I contributed the obligatory amount while in service and in good faith.

3. My discharge does not reflect the fierce love I have for my country and the unyielding allegiance I have always pledged to it.

4. My discharge is no longer deserved as 11 years have now passed.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     860529 - 860701  COG

 Period of Service Under Review :
Date of Enlistment: 860702               Date of Discharge: 881122

 Length of Service (years, months, days):

         Active: 02 00 28
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 59

 Highest Rate: DPSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (2)    Behavior: 3.00 (2)                OTA: 3.20

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR(wb*), AFEM, NAVY"E"RIBBON

Days of Unauthorized Absence: 35

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 :

870121:  NJP for violation of UCMJ, Article 86: (4 Specs), UA from appointed place of duty.
         Award: Forfeiture of $150.00 per month for 2 months, restriction and extra duty for 20 days, reduction to next inferior pay grade (suspended for 6 months). No indication of appeal in the record.

870213:  NJP for violation of UCMJ, Article 86: (2 Specs), UA from appointed place of duty on 870129 and 870201.
         Award: Forfeiture of $50.00 per month for 1 month, restriction with extra duty for 2 days. No indication of appeal in the record.
880526:  Retention Warning from [USS OKINAWA (LPH-3)]: Advised of deficiency (You have committed one or more offenses against the UCMJ, or you have been convicted of (an) offense (s) by a civil court, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880526:  NJP for violation of UCMJ, Article 86: UA (2 Specs), Spec 1: UA from 0645-1025, 880523, Spec 2: UA from 0645, 880524, to 0720, 880525 [1day].
         Award: Forfeiture of $250.00 per month for 2 months and reduction to E-2 (suspended for 6 months), restriction and extra duty for 45 days (15 days suspended for 6 months. No indication of appeal in the record.

880529:  Retention Warning from [USS OKINAWA (LPH-3)]: Advised of deficiency (You have committed one or more offenses against the UCMJ, or you have been convicted of (an) offense (s) by a civil court, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880721:  Reduction to pay grade E-2 and forfeiture of $250.00 pay per month for two months awarded at CO's NJP on 880526 is hereby vacated.

880721:  NJP for violation of UCMJ, Article 86: UA from 880606 to 880706 [30 days/S]; violation of UCMJ Article 87: Miss movement through design on or about 880612; violation of UCMJ Article 92: Disrespectful in language toward his superior petty officer on or about 880604.
         Award: Reduction to E-1. No indication of appeal in the record.

880722:  USS OKINAWA (LPH-3) 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 three or more NJP's within the current enlistment and misconduct due to commission of a serious offense.

880722:          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.

880922:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 880922 having been an unauthorized absentee since 1800, 880730 from USS OKINAWA (LPH-3).

881122:  Report of Return of Deserter. Applicant surrendered to military authorities on 881121. Returned to military control 881121. Discharged in absentia on 881122.

880722:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

880802:  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 881122 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).

In response to the applicant’s issue 1, the Board found that although he may have some admirable accomplishments, these are outweighed by his serious misconduct. No relief is granted based on this issue.

In the applicant’s issue 2, the applicant was briefed on the Veterans’ Educational Assistance Act of 1984 (G.I. BILL). Specifically, he was briefed that an Honorable discharge after completion of 36 months on active duty would be required for entitlement to benefits under the G.I. BILL.

The fact that the applicant has a “fierce love” for his country and “unyielding allegiance” is admirable. It does not, however, change anything about the fact that the applicant had 4 NJPs, 2 retention warnings, was declared a deserter and was discharged from the Navy in absentia. The Board finds that the applicant’s service is accurately characterized as having been performed under other than honorable conditions. No relief is granted based on this issue.

The applicant’s issue 4 states that his “ discharge is no longer deserved as 11 years have now passed.” Unfortunately, t here 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. The characterization is based on his time while in the service, which was served under other than honorable conditions. No relief granted.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A, effective 870615 - 890110), Article 3630600, SEPARATION OF ENLISTED MEMBERS 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 view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.af.mil ”.

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
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      



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