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NAVY | DRB | 2001_Navy | ND01-00785
Original file (ND01-00785.rtf) Auto-classification: Denied


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


ex-MMFN, USN
Docket No. ND01-00785

Applicant’s Request
The application for discharge review, received 010521, 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. Subsequent to the application for review the applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011214. 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
1. (Equity Issue) This former member avers that extenuating financial problems contributed to and sufficiently mitigated his misconduct of record to warrant separation under honorable conditions.
2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
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)     870430 - 870503  COG
Period of Service Under Review :
Date of Enlistment: 870504               Date of Discharge: 910124

 Length of Service (years, months, days):
         Active: 03 08 21
          Inactive: None
Age at Entry: 21                          Years Contracted: 4

Education Level: 12                        AFQT: 28

 Highest Rate: MM3
Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.15 (4)    Behavior: 3.30 (4)                OTA: 3.25

 Military Decorations: None
Unit/Campaign/Service Awards: None

 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 :

890203:  NJP for violation of UCMJ, Article 121: Larceny of personal property on 890121.
         Award: Forfeiture of $200.00 per month for 1 month ($150.00 pay per month suspended for 6 months), restriction and extra duty for 15 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.
900919:  NJP for violation of UCMJ, Article 86: UA from unit from 1730, 900801 to 1930, 900801.
         Award: Restriction and extra duty for 30 days, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.
901020:  Retention Warning from [USS ABRAHAM LINCOLN (CVN-72)]: Advised of deficiency (dishonorable failure to pay just debts), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

901116:  RIR to E-3 suspended for 6 months awarded at CO's Mast held on
         900919 is hereby vacated due to member's continued misconduct.
901116:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty at 1200, 901006 and at 1300, 901006.
         Award: Restriction and extra duty for 30 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.
901117:  [USS ABRAHAM LINCOLN (CVN-72)] notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct as evidenced by the commission of a serious offense and a pattern of misconduct.
901119:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
901210:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.

901213:  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 910124 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. The Board disagrees with the applicant’s assertion that his financial problems mitigated his misconduct to warrant separation under honorable conditions. 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 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 would be inappropriate. Relief denied.
Issue 2. 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 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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