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NAVY | DRB | 2001_Navy | ND01-00082
Original file (ND01-00082.rtf) Auto-classification: Denied


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

ex-DC1, USN
Docket No. ND01-00082

Applicant’s Request
The application for discharge review, received 001020, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The applicant listed American Legion as his representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NRDB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010719. After a thorough review of the records, 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 1910-140 (formerly 3630600). Discharged in absentia.
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. (Equity Issue) This former member now recognizes and regrets his misconduct of record. Moreover, he avers that he has taken action to correct his inservice problems. On this basis, he requests the Board’s relief with recharacterization of his service period to honorable.

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 his application.

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                        880830 - 920823  HON
                  USN                       920824 - 960530  HON
         Inactive: USNR (DEP)     880331 - 880829  COG

 Period of Service Under Review :
Date of Enlistment: 960531               Date of Discharge: 990910

 Length of Service (years, months, days):

         Active: 03 03 10
         Inactive: None

 Age at Entry: 26                          Years Contracted: 6

 Education Level: 12                        AFQT: N/A

 Highest Rate: DC1

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (3)    Behavior: 3.00 (3)                OTA: 3.70

 Military Decorations: None

 Unit/Campaign/Service Awards: GCA, USCGSOSR, SASM, SSDR, OSR, NAVY"E"RIBBON, MUC

Days of Unauthorized Absence: 30

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

GENERAL UNDER HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

960631:  Reenlisted onboard USS SCOTT (DDG-995) for 6 years.

961003:  NJP for violation of UCMJ, Article 111: Drunken or reckless operation of a vehicle, aircraft or vessel.
         Award: Reduction to E-4 (suspended for 6 months). No indication of appeal in the record.

961003:  Retention Warning: Advised of deficiency (Violation of the UCMJ Article 111- Drunken or reckless operation of a vehicle, aircraft or vessel), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning [Extracted from case file].

990113:  Civil Conviction: [Escambia County Court] for driving under the influence.
 Sentence: Probation eleven months, $811.00 fine and costs, driver's license suspended for 6 months, BPO license, 50 hours community service work, $45.00 cost of supervision. Attend DUI school. No alcohol. Vehicle impounded for 10 days.

 990204:  NJP for violation of UCMJ, Article 86: UA from on or about 981113.
         Award: Reduction to E-5 (suspended for 6 months). No indication of appeal in the record.

990204:  Retention Warning: Advised of deficiency (Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning [Extracted from case file].

990707:  Civil Conviction: [Santa Rosa Circuit Court, Milton] for driving under the influence, fleeing or attempting to elude an officer, and driving while license suspended.
 Plea: Nolo contendere to all 3 charges.
Findings: Adjudged guilty to all 3 charges.
 Sentence: Counts 1 and 3- 1 year probation and first 30 days in county jail w/95 days credit to run concurrent. Count 2- 1 year probation with the first 30 days with credit for 95 days.
990810:  Applicant notified of intended recommendation for discharge general under honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense and misconduct due to civilian conviction.
990810:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
991004:  Commanding officer authorized discharge general under honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense and misconduct due to civilian conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 990910, in absentia, 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, 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 now recognizes and regrets his misconduct of record. Moreover, he avers that he has taken action to correct his inservice problems. On this basis, he requests the Board’s relief with recharacterization to of his service period to honorable. It is the Board’s determination that when a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The applicant’s service was marred by the award of non-judicial punishment (NJP) on two occasions for violations of the Uniform Code of Military Justice (UCMJ). The applicant’s misconduct included unauthorized absence and drunken or reckless operation of a vehicle. In addition, the applicant also had two civilian convictions for driving under the influence. The applicant’s conduct and proficiency markings, which form the primary basis for determining the character of his service, reflect his misconduct. An upgrade to honorable would be inappropriate. Relief is therefore denied.

The applicant’s representative submitted the following as issue 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 his application. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 did not provide any documentation of his post-service . The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using alcohol in order for consideration for clemency based on post-service conduct. 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 “ 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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