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NAVY | DRB | 2001_Navy | ND01-00699
Original file (ND01-00699.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND01-00699

Applicant’s Request
The application for discharge review, received 010424, requested that the characterization of service on the discharge be changed to honorable or entry level separation or uncharacterized and the reason for the discharge be changed to convenience of the government. 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 011127. 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 and narrative reason of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I had joined United State Navy to learn State of Art Computer Repair Technician. My recruiter lied and told me that there will be computer everywhere around ship and you will work on them. Hence he kept my service base on pure lie.

2. was doing above average seaman and my evaluation were above 3.5 and I was also considered as a nominee for BUC Jacket of Command. My department acknowledge my service as Blue Jacket of Deck.

3. Following medical problems impaired my ability to serve.

a. Gastic pain: Treated by various command medical officer. I was also admitted in American Hospital -DUBAH for a day during active service duty and one week in at NAS Greece during sea duty.

b. Nasal allergy, block nasal passage was creating headache for me and was making my service harder for me. I had given no medicine for that.

4. I speak five languages and my name was among first servicemen who could help during sea service. My friends have my full language services during Gulf tour.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Criminal Record Letter
Character Reference Letters (3)
Copies of DD Form 214 (2)
Service Related Documents (10pgs)
Copy of Report of Medical Examination

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               None
         Inactive: USNR (DEP)     970523 - 970608  COG

 Period of Service Under Review :
Date of Enlistment: 970609               Date of Discharge: 000121

 Length of Service (years, months, days):

         Active: 02 07 12
         Inactive: None

 Age at Entry: 31                          Years Contracted: 4

Education Level: 12                        AFQT: 42

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (3)    Behavior: 3.00 (3)                OTA: 2 .89 (5.0 evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: BATTLE"E"RIBBON, AFEM, NUCM, NM

Days of Unauthorized Absence: 1

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

990709:  NJP for violation of UCMJ, Article 86: Absent from appointed place of duty 0730 to 0930, 990909, violation of UCMJ Article 90: Disobey lawful order of CO on 990708 by failing to provide a urinalysis, violation of UCMJ Article 91: Disobeying lawful order of CPO on 990521 by failing to conduct preservation.
         Award: Correctional Custody Unit for 30 days, forfeiture of $537.00 per month for 2 months, reduction to E-2, and an Oral Admonition. No indication of appeal in the record.
990722:  NJP for violation of UCMJ, Article 86: (5 Specs), Spec 1: Absent from place of duty 0715-1000, 990714; Spec 2: Absent from place of duty 0715-1400, 990715; Spec 3: Absent from place of duty 0715-1400, 990716; Spec 4: Absent from place of duty 0715-1000, 990720; Spec 5: Failed to go to restricted men's muster 1230 990713 to 1230 990720, violation of UCMJ Article 91: Fail to obey lawful order of CPO at CCU on 990713, violation of UCMJ Article 92: Failed to obey lawful general regulation, OPNAVINST 3120-32C PARA 510.436 by wrongfully striking and failing to report and perform his duties as assigned.
         Award: Correctional Custody Unit for 30 days, forfeiture of $479.00 per month for 2 months, reduction to E-1. No indication of appeal in the record.
990723:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 86, absent from appointed place of duty, failing to go to appointed place of duty; Article 90, fail to obey lawful order of CO; Article 91, fail to obey lawful order of CPO; and Article 92, fail to obey lawful general regulation, as evidenced by your CO's NJP of 990709 and 990722) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000113:  NJP for violation of UCMJ, Article 86 (2 Specs), Spec 1: Absent from unit without authority 0730-1430, 990823; Spec 2 Absent from unit without authority 0745, 990823 to 0730, 990829; violation of UCMJ Article 90: Willful disobedience of a lawful order issued by LCDR on 990823; violation of UCMJ Article 92: (2 Specs), Fail to obey a lawful general regulation, PARA 510.43G OPNAVIST 3120.32C (NAVY SORM) DTD 940411 by wrongfully striking and failing to report and perform his duties as assigned from 990830 to 991229, and willful dereliction of duty from 990830 to 991229 by willfully failing to perform his duties as assigned.
         Award: Forfeiture of $502.00 per month for 2 months, restriction for 60 days. No indication of appeal in the record.
         
000113:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.
000113:          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.
000115:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.

000119:  COMLOGRON TWO authorized the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000121 under other than honorable conditions for misconduct due to commission of a serious offense (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. The Board found the applicant’s dissatisfaction with his rate does not relieve him of responsibility for his actions. Relief denied.

Issues 2 and 4. 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 three occasions and an adverse counseling entry. 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. No other narrative reason more clearly describes why the applicant was separated from the Navy. An upgrade to honorable would be inappropriate. Relief denied.

Issue 3. The applicant did not provide sufficient documentation to convince the Board that his misconduct was directly related to his medical problems. 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 sufficient 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 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 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE .
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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