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NAVY | DRB | 2000_Navy | ND00-00868
Original file (ND00-00868.rtf) Auto-classification: Denied


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

ex-ICFN, USN
Docket No. ND00-00868

Applicant’s Request
The application for discharge review, received 000707, 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 010215. 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: GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My discharge should be upgraded because:
1) It was over 43 months between my second and third NJP
2) The board recommended retention.
3) Counseling by the parent command was never violated as per MILPERSMAN 3630600.2
4) Counseling within the meaning of MILPERSMAN 3610260.5 was never violated
5) The board found that I had not committed the acts which underlay the third punishment under the UCMJ on which the board's finding of pattern of misconduct is based.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of letter of deficiency dated May 20, 1996
Copy of appointment of Administrative Board dated May 13, 1996
Copy of Enlisted Performance Record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        870913 - 910409  HON
         Inactive: USNR (DEP)     870626 - 870912  COG

 Period of Service Under Review :
Date of Enlistment: 910410               Date of Discharge: 960816

 Length of Service (years, months, days):

         Active: 05 04 07
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4 (13 months extension)

 Education Level: 13                        AFQT: 63

 Highest Rate: IC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.52 (5)    Behavior: 3.56 (5)                OTA: 3.68

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, GCM (2) NDSM, SSDR with 1 Bronze Star

 Days of Unauthorized Absence: 2

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

911205:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty, E-Division quarters on 8Nov91.
         Award: Restriction and extra duty for 14 days. No indication of appeal in the record.
920429:  NJP for violation of UCMJ, Article 86: Unauthorized absence from unit, USS HOLLAND from 21-23 April 1992 (2 days).
         Award: Restriction and extra duty for 30 days, reduction to ICFN. Reduction suspended for 6 months. No indication of appeal in the record.
920429:  Retention Warning: Advised of deficiency (Your unauthorized absence from USS HOLLAND from 21-23 April 1992 which resulted in Commanding Officer's Nonjudicial Punishment on 29April.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960111:  NJP for violation of UCMJ, Article 112: Drunk on duty on 15Dec95.
         Award: Forfeiture of 1/2 months pay per month for 2 months, restriction and extra duty for 45 days, reduction to ICFN. Forfeiture suspended for 3 months. No indication of appeal in the record.
960117:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense, pattern of misconduct and alcohol abuse rehabilitation failure.
960125:  ETOH dependency evaluation: A: Physically and psychologically ETOH dependent. P: Level III, AA recommended 7 times a week.

960130:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
960514:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had not committed a serious offense and found that the applicant had committed a Pattern of misconduct and alcohol abuse rehabilitation failure, and recommended retention.

960520:  Letter of deficiency. Complete letter found in service record.

 960606:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense, misconduct due to Pattern of misconduct, and alcohol abuse rehabilitation failure. Commanding officer’s comments (verbatim): I do not concur with the findings and recommendation of the Administrative Board. Fireman (applicant) has displayed the type of character that warrants discharge. I strongly recommend he be separated from the naval service and characterizing his discharge as Other than Honorable.

960716:  Chief of Naval Personal recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs) applicant be discharged General (under Honorable conditions) by reason of misconduct due to the Commission of a serious offense.

960730:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) directed General (under Honorable conditions) by reason of misconduct due to the Commission of a serious offense.

960805:  BUPERS directed the applicant's discharge General (under Honorable conditions) by reason of misconduct due a Pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960816 General (under 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).

Issue 1. The applicant states his discharge should be upgraded because it was over 43 months between his second and third NJP. The Board determined there is no merit in the applicant’s issue. Relief denied.

Issue 2. The applicant states the Administrative Separation (ADSEP) Board recommended retention. The NDRB determined that the ADSEP Board recommendation was, in fact, only a recommendation and the ADSEP Board was not the decision making authority. The Secretary of the Navy (SECNAV) was the deciding authority on the characterization and reason for the applicant’s discharge. SECNAV approved the applicant’s discharge as General (under Honorable conditions), due to Commission of a Serious Offense (COSO). The applicant’s reason for discharge on his DD form 214 will be changed to COSO, to correct the administrative error and accurately reflect the decision approved by the Secretary of the Navy. Relief denied.

Issue 3, 4 and 5. The applicant stated, counseling by the parent command was never violated as per MILPERSMAN 3630600.2 and counseling within the meaning of MILPERSMAN 3610260.5 was never violated. Additionally, he states, the board found that he had not committed the acts, which underlay the third punishment under the UCMJ on which the board’s finding of pattern of misconduct is based. The ADSEP Board did not say the applicant was not guilty of the third misconduct (drunk on duty). The ADSEP Board stated the applicant did not commit misconduct due to commission of a serious offense but was guilty of a pattern of misconduct, which required three NJP misconduct convictions. The NDRB determined, the reason for discharge approved by the Secretary of the Navy was COSO, which does not require a counseling warning. The applicant’s reason for discharge on his DD Form 214 will be changed to COSO, to correct the administrative error and accurately reflect the decision approved by the Secretary of the Navy. Relief denied.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective
22 Jul 94 until 02 Oct 96), 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 112, for drunk on duty, 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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