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NAVY | DRB | 2001_Navy | ND01-00399
Original file (ND01-00399.rtf) Auto-classification: Denied


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

ex-RMSR, USN
Docket No. ND01-00399

Applicant’s Request
The application for discharge review, received 010212, requested that the characterization of service on the discharge be changed to 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 010907. 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/Misconduct - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. I would respectfully request an upgrade in my discharge from other than honorable to general under honorable conditions, and receive my veterans benefits. Respectfully yours

 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)     900227 - 900318  COG

 Period of Service Under Review :
Date of Enlistment: 900319               Date of Discharge: 920402

 Length of Service (years, months, days):

         Active: 02 00 15
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 13 1/2           AFQT: 69

 Highest Rate: RMSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.90 (2)    Behavior: 3.00 (2)                OTA: 3.10

 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/MISCONDUCT – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

900320:  Applicant briefed on Navy's policy on drug and alcohol abuse.

 900726:  NJP for violation of UCMJ, Article 86: Absent from appointed place of duty on 7Jul90.
         Award: Forfeiture of $100 per month for 1 months, restriction and extra duty for 3 days. No indication of appeal in the record.
900726:  Retention Warning from Communications Schools Department, Service School Command, San Diego, CA. Advised of deficiency (Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

901231:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence 0700-2351, 26Dec90, (2) Fail to go at the time prescribed to appointed place of duty on 0445, 27Dec90; violation of UCMJ, Article 87: Miss movement through neglect on 0650, 27Dec90, violation of UCMJ, Article 91: (1) Willfully disobey lawful order on 26Dec90, (2). Willfully disobey lawful order on 27Dec90.
         Award: Forfeiture of $362 per month for 2 months, restriction for 30 days, reduction to RMSR. Reduction suspended for 6 months. No indication of appeal in the record.
901231:  Retention Warning from Naval Special Warfare Group ONE: Advised of deficiency (Habitual tardiness, unauthorized absences, disobedience of lawful orders.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910114:  NJP for violation of UCMJ, Article 86: Fail to go at the prescribed time to appointed place of duty on 25Dec91.
         Award: Extra duty for 1 day. No indication of appeal in the record.
910626:  Vacate reduction to RMSR awarded at CO's NJP 901231 due to continued misconduct.
910628:  Civil Conviction: South Bay Judicial Division, Municipal Court of California for violation of driving while having a measurable blood alcohol.
 Sentence: Fine $1000.00, custody for 48 hours.
920320:  BUPERS authorized discharge under Other Than Honorable conditions by reason of misconduct due to a Pattern of misconduct. [Extracted from DD Form 214 and page 13.]

920324:  Applicant refused 30 day inpatient treatment for alcohol dependency.

920402:  DD Form 214: Applicant's discharged under Other Than Honorable conditions by reason of misconduct due to a Pattern of misconduct.

Discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920402 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).

Issue 1. The applicant states he wants his discharge upgraded so he can receive his veteran’s benefits. The Board is under no obligation to upgrade an individual’s discharge for the purposes of allowing him/her to receive his/her veteran’s benefits. 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 any of these documents. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his 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, effective 15 Aug 91 until
04 Mar 93), 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 “ 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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