Search Decisions

Decision Text

NAVY | DRB | 2001_Navy | ND01-00021
Original file (ND01-00021.rtf) Auto-classification: Denied


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


ex-ETSR, USN
Docket No. ND01-00021

Applicant’s Request
The application for discharge review, received 001002, 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 American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010329. 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. (Equity Issue) This former member proffers that diagnosed occupational stress impaired his ability to serve and sufficiently mitigated his misconduct of record to warrant upgrade.

2. (Equity Issue) This former member further opines that his character of discharge is too harsh for his misconduct of record and merits upgrade.

3. (Equity Issue) This former member finally request that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2 copies)
Appointment of veterans service organization as claimant's representative form dated April 19, 2000 selecting American Legion
 Statement from applicant (9 pages)
 Statement from applicant's father dated March 21, 2000
 Fifty-four 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)     960826 - 970714  COG
Period of Service Under Review :
Date of Enlistment: 970715               Date of Discharge: 000128

 Length of Service (years, months, days):
         Active: 02 06 14
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 88
Highest Rate: ETSN

 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 :

990408:  NJP for violation of UCMJ, Article 92: Failure to obey an order or a regulation.
         Award: Oral admonition, restriction and extra duty for 30 days, reduction to ETSN. Restriction and extra duty suspended for 6 months. No indication of appeal in the record.
991110:  NJP for violation of UCMJ, Article 86 (3 specs): Failure to go to appointed place of duty, violation of UCMJ, Article 91: Disobeying a lawful order from a senior chief petty officer, violation of UCMJ, Article 92: Dereliction of duty.
         Award: Restriction and extra duty for 30 days, reduction to ETSA. No indication of appeal in the record.
991110:  Retention Warning: Advised of deficiency (Failing to go to appointed place of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. [Extracted from CO's message dated 29Dec99.]
991216:  Vacate suspended reduction to ETSA awarded at CO's NJP of 991110 due to continued misconduct.
991216:  NJP for violation of UCMJ, Article 91: Disobey a lawful order of a Chief Petty Officer, violation of UCMJ, Article 92 (3 specs): Dereliction of duty.
         Award: Restriction and extra duty for 30 days, reduction to ETSR. No indication of appeal in the record.
991222:  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 commission of a serious offense.
991222:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
991229:  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.
000104:  Commander, Cruiser-Destroyer Group 8 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 000128 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).
The applicant’s representative submitted the following as issue 1: (Equity Issue) This former member proffers that diagnosed occupational stress impaired his ability to serve and sufficiently mitigated his misconduct of record to warrant upgrade. A medical or psychological diagnosis is not an issue upon which the NDRB can grant relief. When reviewing a discharge, the NDRB does consider the extent to which a medical or psychological problem might effect an applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The NDRB does not consider the circumstances surrounding the applicant’s stated condition nor the medical treatment given to the applicant to be of sufficient nature to exculpate the applicant’s misconduct. In fact, the NDRB sees no connection between the applicant’s misconduct and his medical condition. The applicant’s misconduct began before his medical condition and continued after his condition was resolved. Relief is not warranted.

 The applicant’s representative submitted the following as issue 2: (Equity Issue) This former member further opines that his character of discharge is too harsh for his misconduct of record and merits upgrade. The Board found that the applicant received three NJP’s for violating UCMJ Articles 86, 91, and 92 for the offenses of failing to obey an order, failure to go to place of duty, disobeying a lawful order, and dereliction of duty. These are serious offenses which could have sent the applicant to a courts-martial. The applicant also violated a retention warning after his second NJP which resulted in his discharge for pattern of misconduct. The Board finds no merit in this issue.

 The applicant’s representative submitted the following as issue 3: (Equity Issue) This former member finally request that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). However, 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, is considered. The applicant provided no documentation of his post-service. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service and certification of non-involvement with civil authorities in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. He 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. Relief denied.

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      


Similar Decisions

  • NAVY | DRB | 2002_Navy | ND02-01198

    Original file (ND02-01198.rtf) Auto-classification: Denied

    The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing. Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Applicant's DD Form 214. ]950912: Vacate reduction to SR awarded at CO's NJP dated 950607 due to continued misconduct.950912: NJP for violation of UCMJ, Article 86: Unauthorized absence on 950831.

  • NAVY | DRB | 2001_Navy | ND01-00981

    Original file (ND01-00981.rtf) Auto-classification: Denied

    (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Copy of DD Form 214 Comments from applicant dated June 27, 2001 Ten pages from applicant's service record PART II - SUMMARY OF SERVICE Prior...

  • NAVY | DRB | 2000_Navy | ND00-00972

    Original file (ND00-00972.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Copy of DD Form 214 Letter from applicant's mother dated January 5, 2000 (2 copies)Letter from applicant's deceased father's doctor dated March 14, 2000 (2 copies)Letter from Hospice re applicant discharge processing undated (2 copies) Hospice Caregiver education record (2 copies) Copy of applicant's father's certificate of death (2 copies) PART II - SUMMARY OF...

  • NAVY | DRB | 2000_Navy | ND00-00016

    Original file (ND00-00016.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:None. After a thorough review of the records, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).In response to applicant’s issue 1, the Board found that the applicant implies that a permissive doctrine exists whereby one in the military is allowed an "isolated incident". At this time, the...

  • NAVY | DRB | 2004_Navy | ND04-00140

    Original file (ND04-00140.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. 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): Inactive: USNR (DEP) 960918 - 970814 COG Active: None Period of Service Under Review :Date of Enlistment: 970815 Date of...

  • NAVY | DRB | 2001_Navy | ND01-00602

    Original file (ND01-00602.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Copy of DD Form 214 PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: USN 920715 - 960616 HON Inactive: USNR (DEP) 920610 - 920714 COG Period of Service Under Review :Date of Enlistment: 960617 Date of Discharge: 980515 Length of Service (years, months, days):Active: 01 10 26 Inactive: None After a thorough...

  • NAVY | DRB | 2000_Navy | ND00-00424

    Original file (ND00-00424.rtf) Auto-classification: Denied

    991021: An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge general (under honorable conditions). The attached documents along with my service record will that my general discharge should be upgraded.” The NDRB found the applicant’s issue without merit. After review of the applicant’s record the NDRB found,...

  • NAVY | DRB | 2004_Navy | ND04-01154

    Original file (ND04-01154.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. PART I - APPLICANT’S ISSUES AND DOCUMENTATION 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): Inactive: USNR (DEP) 980124 - 980218 COG Active: None Period of Service Under Review :Date of...

  • NAVY | DRB | 2004_Navy | ND04-01199

    Original file (ND04-01199.rtf) Auto-classification: Denied

    ND04-01199 Applicant’s Request The application for discharge review was received on 20040723. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.

  • NAVY | DRB | 2001_Navy | ND01-01016

    Original file (ND01-01016.rtf) Auto-classification: Denied

    ND01-01016 Applicant’s Request The application for discharge review, received 010731, requested that the characterization of service on the discharge be changed to general/under honorable conditions or entry level separation or uncharacterized. (Equity Issue) This former member further avers that his due process rights were not properly explained to him. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement...