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NAVY | DRB | 2001_Navy | ND01-00644
Original file (ND01-00644.rtf) Auto-classification: Denied


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

ex-STGSN, USN
Docket No. ND01-00644

Applicant’s Request
The application for discharge review, received 010410, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance discharge review in the Washington National Capital Region. The applicant did not list any representative on the DD Form 293. in the acknowledgement letter, the applicant was advised that the Naval Discharge Review Board first conducts a documentary review prior to any personal appearance.

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, 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. VETERAN WAS STRUCK BY A NAVAL VAN IN A PEDESTRIAN CROSSWALK IN NORFOLK, VA. VETERAN'S HEAD WAS STRUCK BY THE VAN. VETERAN'S RIGHT ANKLE WAS ALSO INJURED BY THE VAN. AFTER THE ACCIDENT VETERAN BEGAN HAVING PROBLEMS WITH A SLEEP DISORDER. VETERAN FEELS THAT THE INJURY TO THE HEAD CAUSED THE SLEEP DISORDER AND DISCHARGE SHOULD BE UPGRADED TO HONORABLE.

 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)     930120 - 931018  COG

 Period of Service Under Review :
Date of Enlistment: 931019               Date of Discharge: 970725

 Length of Service (years, months, days):

         Active: 03 09 07
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 63

 Highest Rate: OTS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (2)    Behavior: 3.80 (2)                OTA: 3.80

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, NUC

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

940401:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 25Mar94.
         Award: Restriction and extra duty for 14 days. Suspended for 6 months. No indication of appeal in the record.
950919:  NJP for violation of UCMJ, Article 86 (2 specs): Absent without leave.
         Award: Restriction and extra duty for 30 days. No indication of appeal in the record.
951107:  Retention Warning: Advised of deficiency (Pattern of misconduct as evidenced by numerous instances of unauthorized absence). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970403:  NJP for violation of UCMJ, Article 86 (3 specs): Absent from unit on 0730 - 0815, 20Feb97, (2) 0630 - 0720, 28Feb97, (3) 0730 - 0805, 28Mar97.
         Award: Restriction for 15 days, reduction to OTASN. No indication of appeal in the record.
970527:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
970528:  Applicant advised of her 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 and to submit a statement.
970721:  Commanding officer directed discharge general (under 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 970725 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. Less than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on three occasions. The applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service. In the Commanding Officer’s letter dated 970721, the Board noted that the applicant’s chain of command took into consideration the mitigating circumstance surrounding her diagnosed sleeping disorder in their decision to discharge the applicant under honorable conditions (general), vice under other than honorable conditions. An upgrade would be inappropriate. Relief denied.
The discharge was proper and equitable. 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 her not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to her discharge. She is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her 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 denied.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 14, effective 03 Oct 96 until 11 Dec 97), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A 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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