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NAVY | DRB | 2001_Navy | ND01-00032
Original file (ND01-00032.rtf) Auto-classification: Denied


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

ex-BM3, USN
Docket No. ND01-00032

Applicant’s Request
The application for discharge review, received 000929, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance discharge review before the board in the Washington National Capital Region. The applicant listed the American Legion as the 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 020307. 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. (Equity Issue) This former member avers that he was mistreated, charged with violations of the UCMJ and separated with a less than honorable because of the racism on board his ship. For these reasons, he opines that recharacterization of his service period to full honorable is warranted.

2. (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
Statement from applicant dated December 8, 1999
DD Form 149

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     901005 - 901008  COG

 Period of Service Under Review :
Date of Enlistment: 901009               Date of Discharge: 940114

 Length of Service (years, months, days):

         Active: 03 03 06
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 72

 Highest Rate: BM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.76 (5)    Behavior: 3.76 (5)                OTA: 3.64

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM w/Bronze Star, JMUC, SSDR

 Days of Unauthorized Absence: None

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

 Chronological Listing of Significant Service Events :

911012:  NJP for violation of UCMJ, Article 91 (2 specs): Insubordinate conduct towards a superior petty officer on 7Oct91, violation of UCMJ, Article 134: Conduct prejudicial to good order and discipline: racial slur on 7Oct91.
         Award: Reduction to SA. Reduction suspended for 6 months. No indication of appeal in the record.
920603:  NJP for violation of UCMJ, Article 86: Unauthorized absence, failure to go to appointed place of duty, violation of UCMJ, Article 91: Willful disobedience of a petty officer/contempt towards a petty officer.
         Award: Restriction and extra duty for 20 days, reduction to BMSN. Reduction suspended for 6 months. No indication of appeal in the record.
921008:  Retention Warning from USS PHILIPPINE SEA (CG-58): Advised of deficiency (You have been administered nonjudicial punishment twice since October 1991 for incidents involving insubordinate conduct towards your superiors, and have been involved more recent in a questionable incident again involving your insubordinate conduct.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930608:  NJP for violation of UCMJ, Article 91 (4 specs): Insubordinate conduct, violation of UCMJ Article 134 (2 specs): Communicating a threat.
         Award: Reduction to BMSN. Reductions suspended for 6 months. No indication of appeal in the record.
930715:  USS PHILIPPINE SEA (CG 58) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment.
UNDATED:         Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
930715:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had not committed misconduct due to a commission of a serious offense and found that the applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge general (under honorable conditions).

930902:  Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

930924:  BUPERS directed retention of applicant.

931119:  Commanding officer's recommendation to Chief of Naval Personnel (Pers-832) for separation by reason of misconduct due to a pattern of misconduct.

931123:  BUPERS directed the applicant's discharge general (under 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 940114 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 Board’s charter limits its review to a determination on the propriety and equity of the discharge. After review of the applicant’s official records, the Board determined that the applicant’s record of non-judicial punishments and subsequent discharge from military service was proper and equitable. While he may feel that racism was a factor that contributed to his discharge, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Issue 2. The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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 civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.



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. 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 “ afls10.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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