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NAVY | DRB | 2000_Navy | ND00-00117
Original file (ND00-00117.rtf) Auto-classification: Denied


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

ex-FR, USNR
Docket No. ND00-00117

Applicant’s Request
The application for discharge review, received 991102, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed the Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000727. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.3, Equity of Discharge, we ask the Board to consider the following factors:

•         The applicant received the National Defense Service Medal and the Southwest Asia Service Medal.
•         Clemency is warranted because the applicant is suffering adverse consequences of his bad discharge. Reference his inability to attain a burial plot in Louisville cemetery.
2. We ask the Board to consider the applicant's case IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.2, Propriety of Discharge.

The Veterans of Foreign Wars of the United States' express purpose in providing this statement, and any other submittals or opinions of record, is to aid the applicant in resolving any improprieties or inequities in the character and basis for discharge. After reviewing all available evidence, we ask the Board to resolve any doubt in favor of the applicant and to grant the action requested as entitled under Title U.S.C., Section 1553.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2 copies)
 Copy of Louisville Memorial Gardens flyer

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     910731 - 920113  COG

 Period of Service Under Review :
Date of Enlistment: 920114               Date of Discharge: 940110

 Length of Service (years, months, days):

         Active: 01 11 27
         Inactive: None

 Age at Entry: 21                          Years Contracted: 8

 Education Level: 12                        AFQT: 45

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.87 (3)    Behavior: 3.00 (3)                OTA: 2.93

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, SASM

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

920618:  NJP for violation of UCMJ, Article 134: Wrongfully give his military ID card to another.
         Award: Forfeiture of $150 per month for 1 month, extra duty for 15 days. No indication of appeal in the record.
920618:  Retention Warning from (USS SHENANDOH (AD-44)): Advised of deficiency (NJP dated 18Jun92.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

921016:  NJP for violation of UCMJ, Article 134: Drunk and disorderly conduct.
         Award: Restriction and extra duty for 14 days. No indication of appeal in the record. [Extracted from CO's message dated 8Dec93.]

930114:  NJP for violation of UCMJ, Article 86: Unauthorized absence from place of duty.
         Award: Correctional custody for 30 days. No indication of appeal in the record. [Extracted from CO's message dated 8Dec93.]
930909:  NJP for violation of UCMJ, Article 91: Disrespectful in language toward a petty officer.
         Award: Forfeiture of $407 per month for 1 month, restriction and extra duty for 30 days, reduction to FA. No indication of appeal in the record.
930930:  NJP for violation of UCMJ, Article 86 (2 specs): Failure to go to appointed place of duty (Restricted muster).
         Award: Forfeiture of $400 per month for 1 month. No indication of appeal in the record.
         
931026:  USS SHENANDOH (AD-44) 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 current enlistment and commission of a serious offense. [Extracted from CO's message dated 8Dec93.]
931026:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. [Extracted from CO's message dated 8Dec93.]
931208:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.

931216:  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 940110 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 issue 1 submitted by the applicant’s representative, the Board recognizes that the applicant has received a few decorations for his service, however, the Board also 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. Neither does the Board have any obligation to change the applicant’s discharge in order to allow him to attain a burial plot.
The applicant’s representative submitted the following as issue 2: “We ask the Board to consider the applicant's case IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.2, Propriety of Discharge.” 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.

 The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E). The applicant must be aware that 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, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.




Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 5, effective 05 Mar 93 until 21 Jul 94), 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 91, for disrespect to a petty officer, 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 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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