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NAVY | DRB | 2001_Navy | ND01-00430
Original file (ND01-00430.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND01-00430

Applicant’s Request
The application for discharge review, received 010223, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011018. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the 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. (Equity Issue) This former member avers that his alcohol dependence contributed to and sufficiently extenuated his misconduct of record to warrant upgrade of his characterization of service.

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Applicant's statement
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     900831 - 910212  COG

 Period of Service Under Review :
Date of Enlistment: 910213               Date of Discharge: 930830

 Length of Service (years, months, days):

         Active: 02 06 18
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12 GED           AFQT: 55

 Highest Rate: DCFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (4)    Behavior: 3.35 (4)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, BER (2), NDSM

 Days of Unauthorized Absence: 11

 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 :

910215:  You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre service civil authorities: 1/91 Speeding, fine unknown, unpaid. However, any further deficiencies in performance or conduct may result in processing for administrative separation.

921007:  Retention Warning from USS INCHON (LPH 12): Advised of deficiency (Drinking under age. Letters of indebtedness.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

921013:  NJP for violation of UCMJ, Article 134: Disorderly conduct, drunkenness on 29Sep92.
         Award: Restriction and extra duty for 30 days, reduction to DCFA. Reduction suspended for 3 months. No indication of appeal in the record.
921023:  Vacate reduction to DCFA awarded at CO's NJP dated 13Oct92 due to continued misconduct.
921023:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation by wrongfully missing restricted men muster on 22Oct92.
         Award: Confinement on bread and water for 3 days, reduction to DCFR. No indication of appeal in the record.
921109:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation on 3 and 4 November 1992.
         Award: Bread and water for 3 days. No indication of appeal in the record.
930126:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation by drinking underage on 22Jan93.
         Award: Restriction and extra duty for 45 days. No indication of appeal in the record.
930730:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 0715, 24Jun93 to 0142, 3Jul93 (8 days/surrendered), (2) Unauthorized absence from 0715, 27Jul93 to 0715, 30Jul93 (3 days/surrendered), violation of UCMJ, Article 87: Miss ship's movement on 25Jun93.
         Award: Forfeiture of $407.40 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
930803:  USS INCHON (LPH 12) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense as evidenced by five nonjudicial punishments during your current enlistment.
930803:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
930805:  NJP for violation of UCMJ, Article 86: Failure to go to the security office on 0615, 4Aug93.
         Award: Confinement on bread and water for 3 days. No indication of appeal in the record.
930807:  Applicant released from confinement and returned to full duty.

 930813:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

930818:  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 930830 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).

 The applicant’s first issue states: “(Equity Issue) This former member avers that his alcohol dependence contributed to and sufficiently extenuated his misconduct of record to warrant upgrade of his characterization of service.” Based on the applicant’s entire service record, including five NJP’s, the Board found the Other Than Honorable discharge accurately and equitably characterizes the applicant’s service. The applicant’s alcohol dependence does not mitigate his misconduct nor release him from any responsibility for his actions. The applicant was justly punished and discharged for his misconduct. Relief is denied.

The applicant’s second issue states: “(Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.” 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 existed during the period of enlistment in question. No such error existed in this case. 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. Therefore, relief is denied.

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 5, effective 05 Mar 93 until 21 Jul 94), 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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