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NAVY | DRB | 2001_Navy | ND01-00647
Original file (ND01-00647.rtf) Auto-classification: Denied


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

ex-GSMFR, USN
Docket No. ND01-00647

Applicant’s Request
The application for discharge review, received 010416, 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 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: UNDER OTHER THAN HONORABLE CONDITIONS/ PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My discharge was inequitable because I took the charge for the other parties involved. All I'm asking for is an upgrade to an Honorable Discharge. I realize I made a lot of mistakes. If I could turn back the hands of time I would. But its been almost ten years a lost have change. I'm active in church. I would like to be a cop. But I have to have an honorable discharge so if you can find it in your heart to grant me an honorable discharge. I won't make you regret it.

 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: USN               None
         Inactive: USNR (DEP)     911024 - 920322  COG

 Period of Service Under Review :
Date of Enlistment: 920323               Date of Discharge: 940916

 Length of Service (years, months, days):

         Active: 02 05 24
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 31

 Highest Rate: GSMFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (1)    Behavior: 3.00 (1)                OTA: 3.20

 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 OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

931130:  UA from 0545-0607, 931130 [20mins/S].

931130:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty on 931104; UA from unit 931113.
         Award: Restriction to the Ship for 5 days, Page 13 warning, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.

931130:  NJP for violation of UCMJ, Article 134: Obtaining services under false pretense.
         Award: Case referred to Special Court Martial.

931202:  Retention Warning from [USS GEORGE PHILIP (FFG-12)]: Advised of deficiency (Failure to go to appointed place of duty on 931104 and unauthorized absence from your unit for about 30 minutes on 931113. These resulted in non-judicial punishment on 931130). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940113:  NJP for violation of UCMJ, Article 92: Dereliction of duty (failure to report as ordered to remedial PRT).
         Award: Restriction for 10 days. No indication of appeal in the record.

940113:  Punishment of RIR to GSMFA suspended at CO's NJP of 931130 vacated this date due to continued misconduct.

940309:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order.
         Award: Extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

940324:  Retention Warning from [USS GEORGE PHILIP (FFG-12)]: Advised of deficiency (Failure to obey lawful order on 940214, for which you were awarded Commanding Officer's Non-Judicial Punishment on 940309), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940805:  NJP for violation of UCMJ, Article 134: Did from on or about 940506 to on or about 940707, with intent to defraud, falsely pretend to Sprint that he was the authorized holder of a Sprint Calling Card, then knowing the pretenses were false and by means thereof did wrongfully obtain from Sprint, telephone service of a value of $461.42, to wit: Long Distance Telephone Calls.
         Award: Forfeiture of $461.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
940811:  [TPU SAN DIEGO, CA] notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct as evidenced by three or more punishments under the UCMJ.
940811:          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.
940812:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

940824:  BUPERS 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 940916 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).

Issue 1. Under other 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 four occasions and adverse counseling entries on other occasions. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his 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. An upgrade to honorable would be inappropriate. Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country. 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 his 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 any post-service documentation to warrant an upgrade to 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 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 9, effective
22 Jul 94 until 02 Oct 96), 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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