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NAVY | DRB | 2001_Navy | ND01-00594
Original file (ND01-00594.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND01-00594

Applicant’s Request
The application for discharge review, received 010329, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. Subsequent to the application, the applicant obtained representation by the Veterans of Foreign Wars.
Decision

A documentary discharge review was conducted in Washington, D.C. on 011031. 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. While the applicant presents no issues we contend that the discharge is too harsh for the offense committed and ask that the discharge be change as requested.

 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)     971126 - 980126  COG

 Period of Service Under Review :
Date of Enlistment: 980127               Date of Discharge: 990614

 Length of Service (years, months, days):

         Active: 01 04 19
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 45

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (2)    Behavior: 1.50 (2)                OTA: 2.4

 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 :

980603:  Counseling: Advised of deficiency (responsibilities), notified of corrective actions and assistance available.
980629:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful general regulation on 28Jun98, to wit: drinking onboard, violation of UCMJ, Article 112: Drunk on duty on 28Jun98, violation of UCMJ, Article 134: Underage drinking on 28Jun98.
         Award: Forfeiture of $463 per month for 2 months, restriction and extra duty for 45 days, reduction to SR. No indication of appeal in the record.
980820:  NJP for violation of UCMJ, Article92: Failure to obey a lawful general regulation, to wit: under age drinking.
                   Award: Restriction and extra duty for 30 days.

 981019:  Retention Warning: Advised of deficiency (Failure of the PRT.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. [Extracted from CO's letter dated 20May99.]
990430:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful general regulation, to wit: under age drinking on 21Jan99.
         Award: Restriction for 20 days, reduction to SR. No indication of appeal in the record.
990507:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and by reason of misconduct civilian conviction.
990507:  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.
990520:  Commanding officer recommended discharge under other than honorable conditions by reason of defective enlistments and inductions - fraudulent entry into the naval service and misconduct due to a pattern of misconduct. Commanding officer’s comments (verbatim): On 28 January 1998 while at Recruit Training Command, Great Lakes, SR (applicant) was retained in the Navy and advised of her rights (p13 entry) when it was discovered that she failed to disclose a civilian conviction prior to her entry into the service. On 29 June 1998 SR (applicant) went to mast for drinking onboard USS ARCTIC, drunk on duty, and under age drinking. She was awarded 45 days restriction and extra duty, forfeiture of $463.00 ppm x 2 months, and reduction in rate to E-1. The weekend that she got off restriction, SR (applicant) came back to the ship drunk. On 20 August 1998, SR (applicant) went to mast for underage drinking. She was awarded 30 days restriction and extra duty. On 30 April 1999, SR (applicant) went to mast again for underage drinking and was awarded 20 days restriction. SR (applicant) has shown that she cannot be responsible and has become an administrative burden to this command. Under the circumstances, an Other Than Honorable Discharge is appropriate in this case.

990614:  CNPC 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 990614 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 1 states that the discharge should be changed because it is too harsh. The NDRB disagrees. The record shows the applicant was punished on three separate occasions for committing serious military offenses. The applicant was afforded opportunities to correct her deficiencies but failed to comply. The NDRB found the Other Than Honorable discharge equitably characterizes the applicant’s service. Relief is denied.

 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 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, may be considered by the NDRB. The applicant failed to provide documentary evidence to demonstrate her sobriety, positive community service, employment history, and clean police record. Relief is not warranted.

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 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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