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NAVY | DRB | 2001_Navy | ND01-00557
Original file (ND01-00557.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND01-00557

Applicant’s Request
The application for discharge review, received 010321, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing before a traveling panel. The applicant designated a county representative 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 hearings are held in the Washington, DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing. Subsequent to the application, the applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020130. 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: GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)
1. The discharge is improper because my pre-service civilian offenses of minor character were absolute reasons for ultimately being discharged from the Navy. My recruiters definitely & strongly advised me to delete any reference to my pre-service misdemeanors. This obviously, situation by situation, ultimately led to my separation from the Navy.

Submitted by American Legion:

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 ltr dtd Mar 13, 2001
Ltr to Applicant from Commander Naval Surface Force, dtd Oct 15, 1998, advising him a DD Form 215 will be issued corrected characterization of service to General (Under Honorable Conditions)
Copy of DD Form 214 (member's copy)
Copy of DD Form 214 (#4)
Copy of DD Form 215 issued on Nov 4, 1998
Applicant's ltr to the Board dtd April 15, 2001 (3 pages)
Certificate of Course Completion (RM-21 "A" School) dtd 29 Sep 95
Certificate of Completion (Operations Strand Job-Oriented Basic Skills) dtd 7 Jun 95
Letter of Appreciation, CO, USS RENTZ (FFG 46) dtd 6 Nov 97
Letter of Appreciation, CO, NATTC, Millington, dtd 7 Jun 95
Applicant's Parents' ltr to the Board dtd Apr 10, 2001 (3 pages)
Applicant's application to the BCNR dtd April 15, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     941209 - 950129  COG

 Period of Service Under Review :
Date of Enlistment: 950130               Date of Discharge: 980522

 Length of Service (years, months, days):

         Active: 03 03 23
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12½                        AFQT: 44

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*        Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, AFEM, SSDR, Battle "E" Award, 9MM CAL MARKSMAN RIBBON

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER THAN HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

961121:  Applicant's security clearance terminated and striker identification (RM) removed for cause.
970623:  NJP for violation of UCMJ, Article 86: absence without leave; violation of UCMJ Article 91: insubordinate conduct; violation of UCMJ Article 117: provoking speeches; and violation of UCMJ Article 134: general.
         Award: Forfeiture of $500 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
980522:  Applicant discharged Under Other Than Honorable Conditions for misconduct due to pattern of misconduct.

981015:  COMNAVSURFOR advises applicant that he would not be recalled to active duty for purpose of conducting an administrative board but instead, the characterization of the discharge would be upgraded to General (Under Honorable Conditions).

981104:  DD Form 215, Correction to DD Form 214, Certificate of Release or Discharge from Active Duty, issued corrected the characterization service from Under Other Than Honorable Conditions to General (Under Other Than Honorable Conditions).

Discharge package missing.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980522 with a General (Under 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, “The discharge is improper because my pre-service civilian offenses of minor character were absolute reasons for ultimately being discharged from the Navy. My recruiters definitely & strongly advised me to delete any reference to my pre-service misdemeanors. This obviously, situation by situation, ultimately led to my separation from the Navy.” The applicant’s discharge package is missing from his service record. The Board assumes regularity in the conduct of governmental affairs. After careful review of available service record documents, the Board found the discharge proceedings began after the applicant was found guilty at NJP of violation of UCMJ Articles 86, 91, 117, and 134. The NDRB finds no merit in the applicant’s issue that a recruiting irregularity ultimately led to his separation from the Navy. The applicant’s pre-service misconduct and failure to disclose this information may have been a contributing factor to the applicant’s discharge, however, his continued misconduct committed while on active duty lead to his separation from the military. The discharge was proper and equitable. Relief is denied.

 Issue 2. The applicant sites his post-service conduct as a reason to upgrade his discharge to Honorable. 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 sufficient documentation to warrant upgrading his discharge. 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 is denied.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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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