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NAVY | DRB | 2001_Navy | ND01-00523
Original file (ND01-00523.rtf) Auto-classification: Denied


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

ex-MMFA, USN
Docket No. ND01-00523

Applicant’s Request
The application for discharge review, received 010314, 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 010907. 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. (Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his overall service record is sufficient to warrant release under honorable conditions.

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:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     910410 - 910506  COG

 Period of Service Under Review :
Date of Enlistment: 910507               Date of Discharge: 931115

 Length of Service (years, months, days):

         Active: 02 06 09
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 10                        AFQT: 67

 Highest Rate: MMFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.07 (3)    Behavior: 2.93 (3)                OTA: 3.07

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 107

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 :

910508:  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 involvement: In Jul79 used marijuana 1 time not in DEP. However, any further deficiencies in performance or conduct may result in processing for administrative separation.

910515:  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 involvement: Discharging firearm/petty theft/minor in possession of alcohol/vandalism in May 1989 in Texas City, TX; awarded 7 days in jail. However, any further deficiencies in performance or conduct may result in processing for administrative separation.

911107:  NJP for violation of UCMJ, Article 112: Drunk on duty, BAC .131.
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 14 days, reduction to MMFR. No indication of appeal in the record.
911107:  Retention Warning from Service School Command, Great Lakes, IL]: Advised of deficiency (Poor military performance: Drunk on duty on board Service School Command, Great Lakes, IL.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

911219:  Applicant to unauthorized absence 0700, 19Dec91.

 911223:  Applicant from unauthorized absence 0700, 23Dec91 (4 days/ surrendered).
920304:  Applicant to unauthorized absence 0730, 4Mar92.

 920305:  Applicant from unauthorized absence 1340, 5Mar92 (1 day/surrendered).
920625:  NJP for violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty on 26May92, violation of UCMJ, Article 92: Disobey lawful order by drinking alcoholic beverages while on a duty status on 27May92.
         Award: Forfeiture of $100 per month for 2 months, extra duty for 15 days, reduction to E-X. No indication of appeal in the record.
920713:  Retention Warning from [USS EMORY S. LAND (AS-39]: Advised of deficiency (Drunk on duty, NJP: 7Nov91. UA on 26May92. Disobey lawful order by drinking alcoholic beverages while on a duty status, NJP: 25Jun92.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

921002:  Applicant to unauthorized absence, 0700, 2Oct92.

 930108:  Applicant from unauthorized absence 1230, 8Jan93 (98 days/ surrendered).
930122:  NJP for violation of UCMJ, Article 86:
         Award: Correctional custody for 30 days, 1 day suspended. No indication of appeal in the record.

930208:  Retention Warning from [Shore Intermediate Maintenance Activity]: Advised of deficiency (Failure to obey other lawful written order in that you received a command ticket for illegally parking in SIMA, Norfolk parking lot.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930902:  NJP for violation of UCMJ, Article 91 (2 specs), violation of UCMJ, Article 92, violation of UCMJ, Article 128 (3 specs), violation of UCMJ, Article 134 (2 specs): para 73 and 110.
         Award: Forfeiture of $400 per month for 2 months, reduction. No indication of appeal in the record. [Extracted from CO's letter dated 27Sep93.]
930902:  Retention Warning from [Shore Intermediate Maintenance Activity]: Advised of deficiency (Articles 91, 92, 128, 134, para 73.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930907:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence on 0715-0930, 3Sep93, (2) Unauthorized absence from 3Sep93 to 7Sep93 (4 days), violation of UCMJ, Article 92: Failed to obey lawful order on 3Sep93.
         Award: Reduction to MMFR. No indication of appeal in the record.
930907:  Retention Warning from [Shore Intermediate Maintenance Activity]: Advised of deficiency (Article 86 times two, 92.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930915:  Shore Intermediate Maintenance Activity 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 violation of the UCMJ, Articles 86 x 4, 91 x 2, 92 x 3, 112, 128 x 3, 134 para 73, 134 para 110.

930915:          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.
930927:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Commanding officer’s comments (verbatim): Fireman Apprentice (applicant) has had a long standing behavioral problem since reporting on board this command. He has become and will continue to be a administrative burden. Fireman Apprentice (applicant) has total disregard and a lackadaisical attitude toward the standard rules and regulations of the United States Navy. I further recommend that he be separated from the Naval Service with an Other than Honorable discharge based on his characterization of service.

931101:  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 931115 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).

The applicant’s representative submitted the following as issue 1: “(Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his overall service record is sufficient to warrant release under honorable conditions.” The Board found that the applicant had seven retention warnings and fourteen violations of the UCMJ over a two-year period. The negative aspects of his abbreviated military career significantly outweigh the positive. Our country is fortunate to have men and women willing to endure the hardships and make the sacrifices required to serve their country, without violating the UCMJ. Most Sailors serve honorably and well, and therefore, earn their honorable discharge. The applicant's service is accurately characterized as having been performed under other than honorable conditions. Relief is denied.

 The applicant’s representative submitted the following as issue 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 his application.” The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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, is considered. The applicant did not provide any documentation of his post-service . The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using alcohol in order for consideration for clemency based on post-service conduct. At this time, no relief will be granted. The applicant 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 5, effective 05 Mar 93 until 21 Jul 94), 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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