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NAVY | DRB | 2001_Navy | ND01-00760
Original file (ND01-00760.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND01-00760

Applicant’s Request
The application for discharge review, received 010514, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues verbatim:

 1. In 1990 I was a single dumb kid. I didn't care or respect anything, and I did some very stupid stuff while in the U.S. Navy. I do wish to apologize for the trouble I caused, but I think I have been punished long enough. I have gone to college and earned my associate degree on my own. I have gotten married. I have a 10 yr old son and a 8 yr old daughter. I own my own home, and 2 vehicles. You see sirs I finally have learned what respect and self respect is. I am not the stupid kid I was 12 yrs ago. As a working husband and father I ask you to please change my other than honorable discharge to a general discharge. Once again I wish to apologize for any trouble I caused the Navy 12 yrs ago and thank you for your time now.

 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)     880208 - 880626  COG

 Period of Service Under Review :
Date of Enlistment: 880627               Date of Discharge: 901214

 Length of Service (years, months, days):

         Active: 02 05 18
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 74

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (1)    Behavior: 3.60 (1)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, AFEM, CGSPBP

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

890428:  Retention Warning from [USS FANNING (FF-1076)]: Advised of deficiency (Violation of UCMJ, Article 128 (2 Specs) - Assault consummated by a battery), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890501:  NJP for violation of UCMJ, Article 128: (2 Specs) Assault consummated by a battery.
         Award: Forfeiture of $349.00 per month for 1 month (suspended for 6 months), restriction and extra duty for 20 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.

890926:  Punishment of RIR to SR and forfeiture of $349.00 pay for 1 month suspended at CO's NJP on 890428 vacated due to continued misconduct.

890927:  NJP for violation of UCMJ, Article 92: Dereliction in the performance of his duties (sleeping in his rack during working hours for about 1 HR 5 MIN).
         Award: Correctional Custody Unit for 30 days (deferred until 891023). No indication of appeal in the record.

890929:  Retention Warning from [USS FANNING (FF-1076)]: Advised of deficiency (Violation of UCMJ, Article 92-Dereliction of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900302:  UA from 0001-0805, 900302 (8 hrs, 4 mins).

900310:  NJP for violation of UCMJ, Article 86: Unauthorized absence from unit.
         Award: Forfeiture of $362.00 per month for 2 months, (Forfeiture of $362.00 per month for 1 month suspended for 6 months), restriction and extra duty for 30 days. No indication of appeal in the record.

900313:  Retention Warning from [USS FANNING (FF-1076)]: Advised of deficiency (Violation of UCMJ, Article 86-Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

901116:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
         Award: Restriction and extra duty for 45 days, reduction to E-1, process for other than honorable discharge. No indication of appeal in the record.
901123:  USS FANNING (FF-1076) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse as evidenced by three non-judicial punishments under the UCMJ within your current enlistment and violation of UCMJ, Article 112a, Wrongful use of a controlled substance (Amphetamine/ Methamphetamine).
901126:          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.

901128:  Medical evaluation indicates applicant drinks while socializing, he admitted using amphetamines on two or three occasion. No need for medical treatment, found not drug or alcohol dependent.

901205:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse.

901210:  CNMPC 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 901214 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 states that youth and immaturity contributed to his misconduct while on active duty. He states that he has made significant positive changes to his life since discharge and regrets his misconduct while on active duty. The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel his immaturity was a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. The applicant failed to provide documentation to detail positive changes to his lifestyle. 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 his sobriety, positive community service, employment history, and clean police record. Relief is not warranted.

The applicant remains 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 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), 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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