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NAVY | DRB | 2001_Navy | ND01-00424
Original file (ND01-00424.rtf) Auto-classification: Denied


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

ex-BUCR, USN
Docket No. ND01-00424

Applicant’s Request
The application for discharge review, received 010220, 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 010817. 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, authority: NAVMILPERSMAN, Article 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. See attachments 1-12 attached.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Letters from Applicant to BCNR (2)
Copy of Enlisted Performance Record (2pgs)
Copy of Enlisted Qualifications History
Copy of Certificate of Completion from Naval Construction Training Center (Honor Student) (Builder"A"School)
Copies of Letters of Appreciations (2)
Copy of Evaluation Report & Counseling Record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     940422 - 941101  COG

 Period of Service Under Review :
Date of Enlistment: 941102               Date of Discharge: 961227

 Length of Service (years, months, days):

         Active: 02 01 26
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 43

 Highest Rate: BUCN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 2.50 (2)                OTA: 3 .40

 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, authority: NAVMILPERSMAN, Article 3630605.

 Chronological Listing of Significant Service Events :

960822:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 86: Failed to go at the time prescribed to your appointed place of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
960903:  NJP for violation of UCMJ, Article 86: Failed to go at the time prescribed to his appointed place of duty at 0400, 960802, to wit: Galley breakfast preparation.
         Award: Forfeiture of $450.00 per month for 2 months (suspended for months), restriction and extra duty for 30 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.

961011:  CAAC evaluation found applicant alcohol dependent, recommended for Level III inpatient treatment at an ARC/ARD.

961114:  Punishment of reduction in rate to the pay grade of E-2 and forfeiture of $450.00 pay per month for a period of two months suspended at CO's NJP of 960822 vacated due to continued misconduct.

961114:  NJP for violation of UCMJ, Article 91: Disrespectful in language towards superior BU1 on or about 961024, violation of UCMJ Article 134: Drunk and disorderly on or about 961024.
         Award: Forfeiture of $437.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

961122:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure as evidenced by your lack of potential and demonstrated inability or refusal to participate in, cooperate in, or successfully complete Level II or III rehabilitation treatment program; misconduct due to a pattern of misconduct as evidenced by two nonjudicial punishments within your current enlistment; and misconduct due to the commission of a serious offense as evidenced by your nonjudicial punishment of 961114 for violation of the UCMJ, Article 91, an offense for which a punitive discharge would be authorized by the Manual for Courts-Martial for the same or a closely related offense.
961126:          Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to submit statement in own behalf either verbally or in writing and the right to obtain copies of the documents used to support the basis for the separation.
961205:  Applicant refused inpatient Level III treatment.

 961205:  Commanding officer recommended discharge under other than honorable conditions by reason of alcohol rehabilitation failure; misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.

961218:  Commander U.S Naval Forces Marianas authorized applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 961227 under other than honorable conditions for misconduct due to commission of a serious offense (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).

On 010628 the NDRB requested the applicant clarify his issue: “See attachments 1-12 attached.” The applicant failed to respond. The Board carefully considered the attachments provided in the initial application and reviewed a letter (issue) stating an apology for his misconduct, that he has grown considerably since discharge and a request for upgrade in order to gain employment.

Regarding the applicant’s claim that his youth and immaturity led to his misconduct, the Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel his immaturity was a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.

The applicant requested a change in discharge in order to secure government related employment. The Board will not change a discharge for an applicant to gain more favorable employment. However, the NDRB is authorized to consider post-service factors in the re characterization of a discharge. 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 failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record. Relief is not warranted.

The applicant 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 recommended .



Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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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