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NAVY | DRB | 2001_Navy | ND01-00581
Original file (ND01-00581.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND01-00581

Applicant’s Request
The application for discharge review, received 010402, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance hearing before a traveling panel closest to Fayetteville, Arkansas. The applicant did not list any 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.

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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. Upgrade of discharge

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     980330 - 980603  COG

 Period of Service Under Review :
Date of Enlistment: 980604               Date of Discharge: 991102

 Length of Service (years, months, days):

         Active: 01 04 29
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 10                        AFQT: 38

 Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (1)    Behavior: 2.00 (1)                OTA: 2.17

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

981217:  NJP for violation of UCMJ, Article 92: Failure to obey other lawful order, violation of UCMJ, Article 134: Indecent acts with another.
         Award: Restriction for 45 days. No indication of appeal in the record.
990218:  Retention Warning: Advised of deficiency (Violation of other lawful order and indecent act with another.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 990722:  NJP for violation of UCMJ, Article 92 (3 specs): (1) Fail to obey the lawful order issued by CO, NAS North Island that no smoking was allowed in BEQ 774 on 30Jun99, (2) Fail to obey lawful order issued by CO, NAS North Island by consuming alcoholic beverages while under the age of 21 on 30Jun99, (3) Fail to obey lawful order issued by CO, HSL-43 by consuming alcoholic beverages while in a duty status on 30Jun99.
         Award: Restriction and extra duty for 30 days. No indication of appeal in the record.
990722:  Retention Warning: Advised of deficiency (Failure to obey an order or regulation (3 specifications)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
990819:  NJP for violation of UCMJ, Article 92: Fail to obey lawful order on 23Jul99, to wit: consuming alcoholic beverages while under the age of 21, violation of UCMJ, Article 112A: Wrongfully use tetrahydrocannabinol on 23Jul99, violation of UCMJ, Article 134: Incapacitated for duty as a result of wrongful previous overindulgence in intoxicating liquor or drugs on 23Jul99.
         Award: Forfeiture of $479 per month for 2 months, restriction and extra duty for 45 days, reduction to AR. No indication of appeal in the record.

990819:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to a pattern of misconduct and alcohol abuse rehabilitation failure.
990819:  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

990824:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to alcohol abuse rehabilitation failure, misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

991006:  Commander, Naval Air Force, U.S. Pacific Fleet 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 991102 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 issue states: “ Upgrade of discharge.” The Board found the applicant’s service was marred by three NJP’s in his enlistment. Despite repeated discharge warnings and documented counseling the applicant continued his misconduct. The applicant was properly separated for a pattern of misconduct. Relief is not warranted.
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. 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 drugs in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief 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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