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NAVY | DRB | 2001_Navy | ND01-00246
Original file (ND01-00246.rtf) Auto-classification: Denied


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

ex-PNSA, USN
Docket No. ND01-00246

Applicant’s Request
The application for discharge review, received 001219, 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 010615. 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 1910-140 (formerly 3630600).









PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (Equity Issue) Her UCMJ violations notwithstanding, this former member aver that her overall service record warrants a fully honorable discharge.

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 her application.

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 dated December 13, 2000
Character reference dated September 28, 2000
Character reference dated October 16, 2000
Character reference dated October 19, 2000
Character reference dated October 30, 2000
Character reference dated December 12, 2000
Letter from the Salvation Army dated November 5, 1998
Copies of evaluations for 98Jan16-98Jul15, 96Nov08-970715, and 97Jul16-98Jan15.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     950928 - 960902  COG

 Period of Service Under Review :
Date of Enlistment: 960903               Date of Discharge: 000104

 Length of Service (years, months, days):

         Active: 03 04 02
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 61

 Highest Rate: PNSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (3)*   Behavior: 3.00 (3)*               OTA: 3.00*

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

*Marks provided by applicant.

 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 :

980505:  Retention Warning: Advised of deficiency (Military bearing.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
981201:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer. Violation of UCMJ, Article 134: Indecent language, in that PNSN (applicant), on or about 6 August 1998, wrongfully communicated to another person certain indecent of insulting language.
         Award: No evidence of charges found in applicant’s service record. No indication of appeal in the record.
990320:  Civil Conviction: General District Court, Traffic Division for violation of reckless driving 85/55 and no operator's license in possession.
 Sentence: Fined $100.00 plus court costs, 10 suspension of license.
990805:  NJP for violation of UCMJ, Article 91: Willfully disobey the lawful order of a chief petty officer on 9Jul99, to wit: by wearing an object she had been ordered not to, an article through her tongue; violation of UCMJ, Article 92: Failure to obey order or regulation on 9Jul99, to wit: fail to obey the United States Navy Uniform Regulations for "body piercing" by wearing an article through her tongue.
         Award: Forfeiture of $227.00 per month for 1 month. Appealed received 990812. Appeal denied 990909
990921:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.
990921:  Applicant advised of his rights and having consulted 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

990923:  Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct. Commanding officer’s comments (verbatim): Throughout PNSN (applicant's) tenure here at PSD, her attitude towards the Navy and the chain of command has been less than satisfactory. As evidenced by the Civil Conviction and two NJPS, she has established a pattern of misconduct. She has been insubordinate and disrespectful to members of her chain of command as well as to me at her last NJP. She has excused these as "conflicts in personality" as stated in enclosure (6). She has failed to adjust to the demands and discipline required by the military. On 5 May 1998 a NAVPERS 1070/613 was entered into her service record as a warning against a continued pattern of misconduct. At the NJP in December 1998, I could have recommended her for Administrative Separation, but I elected to give her another chance by choosing not to. I warned her that if she got in trouble again, I was going to take action by submitting a recommendation for administrative separation. I felt at the time, this was enough of a rude awakening and fair warning for her to get her act together in order to retain her in Naval Service. I was mistaken. Her actions have proven to me that she does not have a place in the United States Navy, and therefore I am submitting this request to administratively separate PNSN (applicant) for Pattern of Misconduct with a General (Under Honorable Conditions) discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000104 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).

Issues 1 and 2. The applicant states her overall service record warrants a fully Honorable discharge, in addition to her post-service conduct. 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 clemency, based on post-service conduct. The applicant did not provide sufficient documentation to justify an upgrade to her discharge. She is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her 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 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      


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