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NAVY | DRB | 2001_Navy | ND01-00235
Original file (ND01-00235.rtf) Auto-classification: Denied


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

ex-SR, USNR
Docket No. ND01-00235

Applicant’s Request
The application for discharge review, received 001229, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Hemet, California. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington, DC Area. The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010601. 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 3630600.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. I received awards and decorations - aswauth.

2. I have been a good citizen since discharge - aswauth.

3. My ability to serve was impaired by my youth and immaturity - aswauth.

4. My ability to serve was impaired because of family problems - aswauth.

5. I have been gainfully employed since discharge - aswauth.

6. My employment has not been terminated at any time since my discharge - aswauth.

7. I have been married for over a year and now I have a daughter and I am totally committed - aswauth.

8. I was not offered any counseling before being discharged - aswauth.

9. I have become a mature and responsible adult and no longer have an anger problem - aswauth.

10. When I followed the chain of command, I did not receive help when I requested - aswauth.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter of Explanation (2pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               None
         Inactive: USNR (DEP)     None

 Period of Service Under Review :
Date of Enlistment: 950824               Date of Discharge: 970408

 Length of Service (years, months, days):

         Active: 01 04 09
         Inactive: 00 03 07

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 12                        AFQT: 34

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

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 3630600.

 Chronological Listing of Significant Service Events :

951130:  Ordered to active duty for 36 months under the Seaman Apprenticeship Program.

960731:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 121 (Larceny), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960731:  NJP for violation of UCMJ, Article 121: Wrongfully stole a shirt on 960716.
         Award: Forfeiture of $100.00 per month for 2 months, restriction and extra duty for 10 days. No indication of appeal in the record.

970228:  NJP for violation of UCMJ, Article 117: Wrongful use of provoking gestures on 970227, violation of UCMJ Article 128: Wrongfully grabbed another service member by the throat on 970227.
         Award: Forfeiture of $505.00 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.

970312:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty: restricted men's muster, at 0600, 970303; 0600, 970306; 1630, 970307; and 1130, 970309.
         Award: 3 days Bread and water. No indication of appeal in the record.

970319:  NJP for violation of UCMJ, Article 117: Wrongful use of provoking speeches on 970318, violation of UCMJ Article 128: Assault on anther service member on 970318.
         Award: Forfeiture of $450.00 per month for 2 months, restriction for 45 days, reduction to E-1. No indication of appeal in the record.
970319:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due commission of a serious offense and misconduct due to a pattern of misconduct as evidenced by two or more punishments under the UCMJ within the current enlistment.
970319:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation

970320:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due commission of a serious offense and misconduct due to a pattern of misconduct as evidenced by two or more punishments under the UCMJ within the current enlistment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970408 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 applicant states that “ I received awards and decorations.” T he Board found that the applicant received the National Defense Service Medal, but this was not enough to outweigh his misconduct consisting of 4 NJPs. No relief will be granted based on this issue.

In response to the applicant’s issues 2, 5, 6, 7 and 9, 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 reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

In the applicant’s issue 3, the Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his immaturity was a factor that contributed to his action, 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.

In the applicant’s issue 4, the Board found nothing in the records nor did the applicant submit any supporting documentation that showed that his personal problems were of sufficient magnitude that they could not be resolved through standard military channels or by the applicant’s chain of command. In fact, the Board found that the applicant’s age, education, test scores, prior service, promotions and awards were sufficient to qualify him for enlistment. The Board will not grant relief on the basis of this issue.

 In the applicant’s issue 8, the Board found that the applicant was advised of his rights and on 970319 elected to waive his right to counsel. The Board found that the applicant was afforded due process and therefore n o relief will be granted based on this issue.

In the applicant’s issue 10, the applicant states he did not receive help when he requested it. The Board found that the applicant showed complete disregard for requirements of military service from his 4 NJPs consisting of larceny, assault, unauthorized absences and provoking words and gestures. The applicant is responsible for his actions and must accept the consequences of his misconduct. The applicant was given a retention warning advising him of his deficiencies, assistance available to him, and consequences for his actions if further deficiencies were noted. The applicant went to CO’s NJP on 3 separate occasions after this retention warning was issued. The Board does not believe that the applicant was following his “chain of command” as he claims in issue 10, therefore n o relief will be granted based on this issue.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 14, effective 03 Oct 96 until 11 Dec 97), 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 “ 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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