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NAVY | DRB | 2001_Navy | ND01-00505
Original file (ND01-00505.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND01-00505

Applicant’s Request
The application for discharge review, received 010309, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to expiration of enlistment. The applicant requested a personal appearance hearing discharge review before a traveling panel. The applicant listed American Legion as his representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington, DC Area.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 011002. 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 three to two 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 (verbatim)

 1. As evidenced by his supporting documentation and testimony, this former member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief with recharacterization of his service period to Honorable as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
VA Representative Claim
Sworn Statement from Applicant
Copy of DD Form 214
Copy of Notice of Decision (8pgs)
Statements from Applicant (3)
Copies of Service Related Documents (199pgs)
Applicant’s family pictures
Letter from mother-in-law
Letter from friend
Letter from sister-in-law
Letter from brother
Reference from Charlie Geric Contracting
Copy of County of Suffolk police background check
Letter from former Navy supervisor
Letter from former Navy shipmate

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR            820302 - 821226  HON

 Period of Service Under Review :
Date of Enlistment: 821227               Date of Discharge: 861231

 Length of Service (years, months, days):

         Active: 04 00 05
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 12                        AFQT: 31

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.73 (3)    Behavior: 3.30 (4)                OTA: 3.51

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDRw1*, NUCw1*, NEM

Days of Unauthorized Absence: 6

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 :

840825:  NJP for violation of UCMJ, Article 86: UA for 3 hours, violation of UCMJ Article 90: Disobeying a lawful order from a superior commissioned officer, violation of UCMJ Article 134: Drunk and disorderly.
         Award: Forfeiture of $334.00 per month for 2 months, restriction for 60 days, reduction to E-2. No indication of appeal in the record.
850723:  NJP for violation of UCMJ, Article 86: UA from 0730, 850624 to 0730, 850630 (6days).
         Award: 3 days Bread & Water, reduction to E-2 (suspended for 3 months). No indication of appeal in the record.

851012:  NJP for violation of UCMJ, Article 91: Disrespectful in language to two superior petty officers, violation of UCMJ Article 92: Failure to obey a lawful order, violation of UCMJ Article 134: Smoking in an unauthorized area.
         Award: 3 days Bread & Water, vacation of reduction in rate to AA from NJP dated 850723. No indication of appeal in the record.

851106:  Retention Warning from [Fighter Squadron Seventy-Five]: Advised of deficiency (A pattern of misconduct as evidenced by three incidents resulting in Commanding Officer's Non-judicial Punishments for seven separate violations of the UCMJ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

851120:  Executive Officer's Inquiry Warning Notice: You have been charged with the violation of the UCMJ, Article 86-Unauthorized absence in that on or about 0130, 851103, you were 1 hour late returning to the USS SARATOGA from liberty in Naples, Italy. Your charge has been dismissed by the Executive Officer, VF-74 along with the following comment: EMI to be performed to include draft of open letter to Command regarding discipline and responsibilities, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

860412:  Retention Warning from [Fighter Squadron Seventy-Five]: Advised of deficiency (Your arrest by the State of Florida for burglary-auto presents the possibility of civilian conviction and or an extended absence from you unit), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

860819:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order issued by BT1 E___.
         Award: Extra duty for 45 days. No indication of appeal in the record.

860822:  Retention Warning from [Fighter Squadron Seventy-Five]: Advised of deficiency (A pattern of misconduct as evidenced by four incidents resulting in Commanding Officer's Non-judicial Punishment), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

860913:  NJP for violation of UCMJ, Article 86: (1 Spec), UA 860826, violation of UCMJ Article 86: (2 Specs, UA 860910, violation of UCMJ Article 92: Failure to obey a lawful order on 860826, violation of UCMJ Article 92: Failure to obey a lawful order on 860822.
         Award: Restriction to NAS Oceana, Virginia Beach for 30 days, reduction to E-2 and Process for Admin Separation. No indication of appeal in the record.

861217:  [Fighter Squadron SEVENTY FOUR] notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense as evidenced by your service record.
861219:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
861229:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct and commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.
861229:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense as evidenced by his service record.

861230:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
890829:  NDRB documentary record review Docket Number ND89-01405 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 861231 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 representative submitted the following as the applicant’s issue: “ As evidenced by his supporting documentation and testimony, this former member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief with recharacterization of his service period to Honorable, as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.”
 The Board took into full consideration the applicant’s entire service record, and supporting documentation provided. The Board determined that the applicant’s post-service accomplishments were not substantial enough to mitigate his poor personal conduct and overall performance while serving in the U.S. Navy. The applicant’s misconduct, which included five NJPs and two retention warnings, diminished the quality of his service record to a point where only extraordinary post-service accomplishments and documentation would warrant recharacterization of service to Honorable. The Board determined that the applicant’s discharge was proper and equitable. Therefore, relief is denied.

This decision exhausts the applicant’s opportunity for further review by the NDRB. The applicant has had a document review, and a personal appearance hearing. The applicant is encouraged to submit any further appeals for recharacterization of his discharge to the Board of Correction of Naval Records (BCNR).

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560, Change 7/86, effective 15 Dec 86 until 14 Jun 87), Article 3630600, SEPARATION OF ENLISTED MEMBERS 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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