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NAVY | DRB | 2001_Navy | ND01-00359
Original file (ND01-00359.rtf) Auto-classification: Denied


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

ex-RMSR, USN
Docket No. ND01-00359

Applicant’s Request
The application for discharge review, received 010202, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. 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 010615. 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: UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. My discharge was inequitable because the day of my discharg the commanding officer ask me if I wanted to get out and I said yes. But prior to that I finished #5 out of 80 in a radio communication course and I had a top secret clearance. Basically I would like my discharge changed because it's hard to get a good job out here with that hanging over my head.

2. During my stay in the Navy I did my work and what ever was required of me, I never had any problems with any of my serperior officer, and I got alone with everybody but I feel like the military just was'nt for me.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     931207 - 940215  COG

 Period of Service Under Review :
Date of Enlistment: 940216               Date of Discharge: 950324

 Length of Service (years, months, days):

         Active: 01 01 09
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 32

 Highest Rate: RMSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.70 (2)    Behavior: 2.40 (2)                OTA: 3.50

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, NER, AFEM

 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 :

940912:  NJP for violation of UCMJ, Article 92: Failed to obey a lawful order by entering the enlisted club, violation of UCMJ, Article 111: Operate a vehicle while drunk.
         Award: Forfeiture of $416 per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.
940912:  Retention Warning from [Service School Command, San Diego, CA]: Advised of deficiency (Disobeying a lawful order and operate a motor vehicle while drunk.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

941107:  Retention Warning from [USS CLEVELAND (LPD-7)]: Advised of deficiency (Driving under the influence, BAC 0.12%.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950119:  NJP for violation of UCMJ, Article 86: Absent without leave on 0530-710, 23Dec94.
         Award: Restriction and extra duty for 30 days, reduction to RMSR. No indication of appeal in the record.
950119:  Retention Warning from [USS CLEVELAND (LPD 7)]: Advised of deficiency (Tendencies to be late for work and unreliable in reaching the appointed places of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950309:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence on 0600-0905, 3Mar95, (2) Unauthorized absence on 0600-0710, 8Mar96.
         Award: Forfeiture of $427 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
950321:  USS CLEVELAND (LPD 7) 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 your nonjudicial punishments dated 12 September 1994, 19 January 1995, and 9 March 1995.
950321:  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.
950322:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

950418:  BUPERS directed the applicant's discharge under other than 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 950324 under other than 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, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

In response to applicant’s issue 1, the Board has no obligation to change the applicant's discharge in order to allow him to obtain better employment. The Board will not grant relief concerning this issue.

In response to applicant’s issue 2, the Board recognizes that serving in the Navy is very challenging to both the Sailor and his family members. Our country is fortunate to have men and women willing to endure the hardships and make the sacrifices required to serve their country. It must be noted that most Sailors serve honorably and well, and therefore, earn their honorable discharges. The applicant's service is accurately characterized as having been performed under other than honorable conditions. Relief is not warranted.

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 (E). 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) and certification of non-involvement with civil authorities (police records check) 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 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.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective
22 Jul 94 until 02 Oct 96), 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 order, 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 “ 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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