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NAVY | DRB | 2001_Navy | ND01-00265
Original file (ND01-00265.rtf) Auto-classification: Denied


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


ex-SA, USN
Docket No. ND01-00265

Applicant’s Request
The application for discharge review, received 010109, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

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


PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues (verbatim)

1. To Whom It May Concern

 Please consider upgrading my Discharge from General Under Honorable Conditions to Honorable so that I may attend and also receive my G.I. Bill for Educational purposses. I have already submitted my request for Veteran financial aid and it would benefit my future to recieve aid at this time. Thank you

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of advising worksheet from Owens Community College dated December 13, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USNR (DEP)     910516 - 910528  COG

 Period of Service Under Review :
Date of Enlistment: 910529               Date of Discharge: 931008

 Length of Service (years, months, days):
         Active: 02 04 10
          Inactive: None
Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 35
Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.10 (4)    Behavior: 2.75 (4)                OTA: 3.05

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, BER

 Days of Unauthorized Absence: 2
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 :

920407:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0600, 18Mar92 to 0800, 19Mar92 (1 day), violation of UCMJ, Article 92 (2 specs): (1) Failure to obey a lawful general regulation, to wit: having a faddish haircut on board USS THEODORE ROOSEVELT (CVN-71); (2) Failure to obey a lawful general regulation, to wit: wearing an earring.
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 15 days. No indication of appeal in the record.
920528:  NJP for violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty from 1700, 5May92 to 0415, 6May92.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 10 days. No indication of appeal in the record.
920730:  NJP for violation of UCMJ, Article 86 (3 specs): (1) Absence from unit from 0700 to 1600, 1Jul92, (2) Absence from unit from 0700, 5Jul92 to 0700, 6Jul92 (1 day), (3) Absence from unit from 0700 to 1130, 13Jul92.
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 15 days. No indication of appeal in the record.
930420:  Retention Warning from Naval Station, Norfolk, VA: Advised of deficiency (CO's NJP of 7Apr92 for unauthorized absence and failure to obey a lawful; CO's NJP of 28May92 for unauthorized absence; CO's NJP of 30Jul92 for three specifications of unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
930701:  NJP for violation of UCMJ, Article 86: Fail to go to appointed place of duty on 15May93, violation of UCMJ, Article 92: Derelict in the performance of duties on 15May93.
         Award: Reduction to SA. No indication of appeal in the record.
930707:  Naval Station, Norfolk, VA notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment.
930707:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
930819:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, 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).
930825:  Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

930913:  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 931008 general (under honorable conditions) for misconduct due to a pattern of misconduct (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).
In response to the applicant’s issue, t he Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. The Board did note that the applicant only had 28 months of active duty; 36 months of active duty are required to receive G.I. Bill benefits.
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 nonjudicial punishment (NJP) on four occasions for violations of the Uniform Code of Military Justice (UCMJ). The applicant’s misconduct included unauthorized absence, failing to obey lawful regulations and dereliction of duty. The applicant’s conduct and proficiency markings, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an honorable characterization of service. In addition, an Administrative Discharge Board found, unanimously, that the applicant had committed misconduct due to a pattern of misconduct and recommended a general discharge. An upgrade to honorable would be inappropriate. Relief is therefore denied.
The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E). The applicant must be aware that 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, may be considered by the NDRB. 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. Representation at personal appearance hearing is highly recommended.

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. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92, for failure to obey a lawful regulation, if adjudged at a Special or General Court-Martial.

C. 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.

D. 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.

E. 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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