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NAVY | DRB | 2000_Navy | ND00-00328
Original file (ND00-00328.rtf) Auto-classification: Denied


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

ex-HTFR, USN
Docket No. ND00-00328

Applicant’s Request
The application for discharge review, received 000112, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a personal appearance hearing closest to Pueblo, CO. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, the applicant 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 000817. 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 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. There was no legal representation I was judged by my peers they had already found me guilty it was just a matter of going through the motions of the Court.

2. I was never really given a chance to defend myself. I was told to accept the judgement of my peers and leave or be persecuted the rest of my time. You know what they are capable of out there.

3. Look at my life before I was in the service and now, there is no pattern of my life this way.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Character reference dated October 1, 1999
Character reference dated September 17, 1999
Character reference dated September 16, 1999
Character reference dated September 13, 1999
Character reference dated August 29, 1999
Character reference dated September 1, 1999
Character reference dated September 7, 1999
Character reference undated
Character reference dated September 18, 1999
Letter from applicant dated February 28, 2000
Copy of DD Form 214
Six pages from applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     970310 - 970915  COG

 Period of Service Under Review :
Date of Enlistment: 970916               Date of Discharge: 990216

 Length of Service (years, months, days):

         Active: 01 05 01
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: XX

 Highest Rate: HTFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (2)    Behavior: 1.00 (2)                OTA: 1.92

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM

 Days of Unauthorized Absence: 52

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 :

980618:  NJP for violation of UCMJ, Article 86 (3 specs): Unauthorized absence from 6May98 to 31May98 (24 days), 5Jun98, 11Jun98 , violation of UCMJ Article 87 (2 specs): Missing ship's movement 14May98 and 27May98, violation of UCMJ Article 115: Malingering.
         Award: Forfeiture of $450 per month for 2 months, confinement with bread and water for days, reduction to HTFR. No indication of appeal in the record. [Extracted from CO's message dated 29Jan99.]
980624:  Retention Warning: Advised of deficiency (Malingering, absence without leave (3 specs), and missing ship movement.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

981118:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0600, 7Oct98 to 2350, 2Nov98 (26 days/surrendered).
         Award: Forfeiture of $463 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
990128:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to a Pattern of misconduct and misconduct due to the Commission of a serious offense.
990128:          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

990129:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to a Pattern of misconduct and misconduct due to Commission of a serious offense.

990202:  COMNAVSURFPAC 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 990216 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 the applicant’s issues 1 and 2, the Board determined these issues are without merit. The applicant claims, he had no legal representation and was judged by his peers, he had already been found guilty and was told to accept the judgement or be persecuted if he stayed in. The applicant’s service contains the Administrative Separation Processing Notice-Administrative Board Procedure letter on which the applicant waived his right to consult with counsel and further waived his right to an Administrative Board. The discharge was proper and equitable. Relief denied.

In the applicant’s issue 3, the Board determined this issue is without merit. The applicant petitions the Board to look at his life before and after his military service. Unfortunately, the characterization of the applicant’s service has nothing to do with the events of his life before or after military service. His discharge characterization reflects the quality of service he rendered to his country, as a member of the U.S. Navy. The applicant was guilty of multiple violations of the UCMJ, to include malingering, unauthorized absence for 24 days and again for 26 days, and missing ship’s movement (a serious offense, punishable by court martial). The discharge was proper and equitable. Relief denied.

The applicant did provide several character reference letters that provide a snap shot of the applicant’s character. These letters are not sufficient, however, to warrant recharacterizing the applicant’s discharge. The Board does recommend that the applicant arrange for a personal appearance hearing to present his case. It would be to his avantage to bring additional documentation that will demonstrate that he is a productive member of society and a person of good character and conduct. The NDRB is authorized to award clemency for post-service factors (what has the applicant done since discharge to become a contributing member of his/her community and to society in general). Those factors include but are not limited to the following: Evidence of continuing educational pursuits (transcripts, diploma, degree or vocational-technical certificates), a verifiable employment history (letter of recommendation from employer), documentation of community service (letter from activity/community group), certificate of non-involvement with civil authorities (police records check) and proof of not using drugs (detoxification certificate). The applicant provided minimal documentation to demonstrate good character and conduct. The applicant is encouraged to continue establishing a reputation of good character and document his accomplishments. Documentation to support any claim of good character is a must to receive any consideration based on post-service achievements . The applicant remains eligible for a personal appearance hearing, to discuss his post-service accomplishments, provided an application is received by the NDRB within fifteen years from the date of his discharge. Legal representation at the hearing is advisable.

 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 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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