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NAVY | DRB | 2001_Navy | ND01-00616
Original file (ND01-00616.rtf) Auto-classification: Denied


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

ex-MSSA, USNR
Docket No. ND01-00616

Applicant’s Request
The application for discharge review, received 010405, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011018. 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 HONORABLE CONDITIONS (GENERAL)/Misconduct - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. The "Pattern of Misconduct" for which my discharge was made general is an unfair reason. During my time from 1987-1990 onboard my ship my division officer and I didn't get along. He was subsequently discharged from the Navy during this time for using cocaine. When I brought this to the attention of my Captain he expressed his understanding for my situation but informed me he couldn't reverse the past Article 15 judgements.

I was "convicted" 4 (four) times onboard ship during this span for being "U.A.". On all 4 occassions we were underway and I overslept and slept through a general quarters drill on one occasion. I complained that I never heard the calls to reveilly or G.Q. to no avail. I have since been diagnosed with severe sleep apnea by the V.A. and treated. I now no longer have problems with waking up. Had I been treated back then there would have been no "Pattern".

 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)     850308 - 870914  COG

 Period of Service Under Review :
Date of Enlistment: 870915               Date of Discharge: 920725

 Length of Service (years, months, days):

         Active: 04 10 11
         Inactive: None

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 12                        AFQT: 96

 Highest Rate: MS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.76 (5)    Behavior: 3.44 (5)                OTA: 3.48

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

880201:  NJP for violation of UCMJ, Article 86: Absence from place of duty.
         Award: Forfeiture of $100 per month for 1 month, restriction for 7 days, reduction to MSSN. Reduction suspended for 6 months. No indication of appeal in the record.
880414:  Vacate reduction to MSSN awarded at CO's NJP dated 1Feb88.

 880414:  NJP for violation of UCMJ, Article 86: Absence without leave.
         Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 14 days, reduction to MSSA. Reduction suspended for 6 months. No indication of appeal in the record.
900502:  NJP for violation of UCMJ, Article 89: Disrespect toward a superior commissioned officer on 4Apr90, violation of UCMJ, Article 90: Willful disobedience of a superior commissioned officer on 4Apr90.
         Award: Forfeiture of $100 per month for 1 month, reduction to MSSN. Reduction suspended for 2 months. No indication of appeal in the record.
900928:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Fail to go to appointed place of duty on 0745, 16Sep90, (2) Fail to go to appointed place of duty on 0815, 16Sep90.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 7 days. No indication of appeal in the record.
910112:  NJP for violation of UCMJ, Article 86: Absent without authority.
         Award: Forfeiture of $561 per month for 2 months, restriction and extra duty for 45 days, reduction to MSSN. No indication of appeal in the record.
910112:  Retention Warning from Naval Air Station, Glenview, IL: Advised of deficiency (You were found guilty at Commanding Officer's nonjudicial punishment this date of 12Jan91.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
911214:  NJP for violation of UCMJ, Article 86: On 4Nov91.
         Award: Forfeiture of $500.70 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
920403:  NJP for violation of UCMJ, Article 86: Absent from appointed place of duty, violation of UCMJ, Article 92 (2 specs): Dereliction of duty on two counts.
         Award: Forfeiture of $440 per month for 2 months, restriction and extra duty for 45 days, reduction to MSSA. No indication of appeal in the record.
920408:  Naval Air Station, Glenview, IL 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 seven nonjudicial punishments under the UCMJ in your current enlistment.
920408:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
920416:  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, that the misconduct warranted separation, and recommended discharge under honorable conditions (general).
920630:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

920719:  BUPERS directed the applicant's discharge under honorable conditions (general) 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 920725 under honorable conditions general 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).

In response to the applicant’s issue, the Board determined that the applicant demonstrated a definite pattern of misconduct by receiving 6 NJP’s in two years. The applicant claims to have a severe case of sleep apnea, which caused his numerous UA’s. However, no documentary evidence of such a medical condition was submitted to the Board and there was nothing in his medical record to show that the applicant suffered from sleep apnea. The discharge was proper and equitable. Relief denied.

The following is provided for the applicant’s edification. 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, effective 15 Aug 91 until
04 Mar 93), 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 90, for willful disobedience of a superior commissioned officer, 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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