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NAVY | DRB | 2000_Navy | ND00-00657
Original file (ND00-00657.rtf) Auto-classification: Denied


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

ex-FA, USN
Docket No. ND00-00657

Applicant’s Request
The application for discharge review, received 000427, 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 001102. 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 (verbatim)

1. With in 4 month prior to my discharge I was involved in some legal trouble with the civilian authorities off base.

I was told that this situation would not affect my discharge.

My legal officer told me in my barracks that I would receive a general discharge.

So I request that my discharge be upgraded to general.


 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: None
         Inactive: USNR (DEP)     980127 - 980412  COG

 Period of Service Under Review :
Date of Enlistment: 980413               Date of Discharge: 990211

 Length of Service (years, months, days):

         Active: 00 09 29
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 32

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                           Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

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 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

980722:  NJP for violation of UCMJ, Article 92: Wrongfully contributing to a minor on 13Jul98.
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.

980722:  Retention Warning: Advised of deficiency (Poor military performance, to wit: underage drinking.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980819:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 6Aug98, violation of UCMJ, Article 134: wrongfully break restriction on 6Aug98.
         Award: Forfeiture of $216.00 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
980819:  Retention Warning: Advised of deficiency (Poor military performance, to wit: unauthorized absence and breaking of restriction instruction.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980914:  Applicant admitted to Level III treatment, Great Lakes, IL.

980930:  Applicant discharged from Level III treatment after refusing further treatment. Discharge prognosis: Treatment failure.

 981013:  Retention Warning: Advised of deficiency (Alcohol rehabilitation failure.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990108:  Civil Conviction: Nineteenth Judicial Circuit, Lake County, Illinois for violation of unlawful use of credit card, class IV Felony.
 Sentence: Supervised probation for 24 months, public service for 125 hours, and restitution of $295.81, court cost.
990115:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to civilian conviction, misconduct due to commission of a serious offense and alcohol abuse rehabilitation failure.
990115:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights

980122:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense, misconduct due to civilian conviction and alcohol abuse rehabilitation failure.

990126:  Commander, Naval Training Center, Great Lakes 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 990211 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 issue 1, the Board found that the applicant’s service is accurately characterized as having been served under other than honorable conditions. In his 9 months of service, the applicant had 3 retention warnings, 2 NJPs, attended Level III treatment for alcohol abuse and was convicted of a Class IV Felony, unlawfully using a credit card. The applicant states that he was told he would be discharged with a general discharge, but he offers no documentation to support this statement. In addition, the applicant states that he was told that the situation would not affect his discharge. The applicant clearly had a pattern of misconduct within his short time in the service. His civil conviction was just one aspect of his discharge and it was well within the CO’s authority to use the fact that the applicant had a felony civil conviction in his administrative separation from the military. No relief will be granted based on this issue.

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. 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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