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NAVY | DRB | 2001_Navy | ND01-00282
Original file (ND01-00282.rtf) Auto-classification: Denied


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

ex-YNSNA, USNR(TAR)
Docket No. ND01-00282

Applicant’s Request
The application for discharge review, received 010108, 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 designate a 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 reason for discharge shall change and the character of the discharge shall remain the same. The discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/SECRETARIAL PLENARY AUTHORITY, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)
1. Dear Naval Board, My name is J_ A. G_, (Applicant), SSN#--- -- ----. I was discharged from Active Duty over 2 years ago, with a General discharge. I'm writing the Board to request an upgrade. I'm requesting a Honorable discharge. Since my discharge I've worked really hard to get my life back in order. I'm truly sorry that I was not able to complete my tour of Active duty. Attached is some of my accomplishments since my discharge. Please accept my deepest apology.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
21 pages from Applicant's Military Service Record
College transcript (Spring 1999 and Spring 2000)
Letter of Acceptance to University of Houston-Downtown dtd Jun 1, 2000
 Letter of Congratulation from Southwestern College dtd July 15, 1998 concerning academic record
Southwestern College transcript dtd 10/12/98
Letter of Congratulation from RADM T. F. H_, Ret., dtd 12 Dec 97
VA Regional Office, Houston, TX ltr of Aug 10, 1998 denying school benefits
University of Houston-Downtown ltr dtd 3/9/00 concerning financial aid
University of Houston-Downtown ltr dtd Dec 8, 99 concerning admissions
Ocean Energy, Inc Letter of Employment Officer dtd Aug 10, 1999 (2 pages)
Marriage License dtd Sep 15, 1999
New Testament Christian Church Guest Thank You
College of Business - UH Downtown, Bachelor or Business Administration - Student Academic Plan

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USNR(TAR)                 910626 - 950406  HON

 Period of Service Under Review :
Date of Enlistment: 950407               Date of Discharge: 980724

 Length of Service (years, months, days):

         Active: 03 03 18
         Inactive: None

 Age at Entry: 23                          Years Contracted: 6

 Education Level: 12                        AFQT: 41

 Highest Rate: YN2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.9 (2)     Behavior: 4.0 (2)                 OTA: 4.0 (Incomplete)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, GCM

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 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

950407:  Reenlisted for a term of 6 years.

 980227:  NJP for violation of UCMJ, Article 92: failure to obey a lawful order.
         Award: Oral admonition, extra duty for 14 days. No indication of appeal in the record.
980522:  NJP for violation of UCMJ, Article 86: failure to report to place of duty; violation of UCMJ, Article 92: dereliction in the performance of duties; violation of UCMJ, Article 134: incapacitation for performance of duties through wrongful indulgence in intoxicating liquor.
Award: Reduction to E-4 (Suspended). No indication of appeal in the record.
980714:  Suspended reduction to next inferior pay grade (E-4) per CO's NJP of 22 May 98 vacated this date.
980714:  NJP for violation of UCMJ, Article 134: drunk and disorderly conduct on 24 June 98; violation of UCMJ Article 111: drunken operation of a vehicle on 26 June 98.
         Award: Forfeiture of $500 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
98xxxx:  Applicant offered alcohol rehabilitation treatment and elected not to receive treatment.
980715:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.
980715:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

980813:  Commander, Helicopter Wing Reserve advised BUPERS applicant was discharged general (under honorable conditions) by reason of misconduct due to a pattern of misconduct. Commanding officer’s comments (verbatim): "Subject member is to be separated by Reason of Misconduct due to violations of the UCMJ and repeated counseling for failure to pay just debts. Certificate of discharge will reflect discharge due to Pattern of Misconduct. Characterization of service is General (Under Honorable Conditions)."

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980724 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 character of discharge was proper and equitable (C and D), but that the reason for discharge was improper.

The Board found that the applicant’s issue 1 concerns post service conduct. 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, can be considered. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. At this time, the applicant has not provided sufficient documentation of good character and conduct. Therefore relief is denied. The applicant is reminded that he remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.

In review of the discharge, the Board found that the discharge was improper for misconduct due to pattern of misconduct. According to the Naval Military Personnel Manual (A), members may be separated when during the current enlistment they have:
•         two or more nonjudicial punishments, court-martial, or civil convictions (or combination thereof);
•         violated a NAVPERS 1070/613, Administrative Remarks counseling/warning (MILPERSMAN 1910-204) specifically addressing the non-support.
The applicant’s chain of command failed to issue a retention warning to the applicant allowing him sufficient time to correct his deficiencies. In the Commanding Officer’s letter to BUPERs dated 980813, 1(i) states “Most recent NAVPERS 107/613 warning: N/A” indicating that a NAVPERS 1070/613 retention warning was never given to the applicant. The Board finds that the applicant could have been properly processed for misconduct due to commission of a serious offense and separated from the Navy properly and equitably with either a general (under honorable conditions) discharge characterization or an other than honorable discharge characterization. Therefore, the Board finds the discharge characterization general (under honorable conditions) is equitable based on the applicant’s service record and repeated misconduct. The Board finds that the reason for discharge is improper for misconduct due to pattern of misconduct and grants relief for the basis/reason for discharge only. The narrative for separation shall change to Secretarial Plenary Authority. Partial relief is granted.

 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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