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NAVY | DRB | 2001_Navy | ND01-00789
Original file (ND01-00789.rtf) Auto-classification: Denied


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


ex-SR, USN
Docket No. ND01-00789

Applicant’s Request
The application for discharge review, received 010516, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Austin, Texas. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington, DC Area. The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.

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 HONORABLE CONDITIONS (GENERAL) /Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues

 1. Discharge
 a. Upgrade to Honorable
 b. Due process
 c. Time period for Review is at hand

2. I have served in the Gulf on Board USS TRUXTON CGN 35 with honors.
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)     860612 - 860624  COG
Period of Service Under Review :
Date of Enlistment: 860625               Date of Discharge: 891208
Length of Service (years, months, days):

          Active: 03 05 14
          Inactive: None

 Age at Entry: 24                          Years Contracted: 4

Education Level: 12                        AFQT: 62

 Highest Rate: SN
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.26 (3)    Behavior: 2.80 (3)                OTA: 3.26
Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, AFEM
Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

861203:  NJP for violation of UCMJ, Article 86: (2 Specs), Spec 1: Failed to obey lawful order or regulation on or about 861203.
         Award: Restriction and extra duty for 7 days. No indication of appeal in the record.
861203:  Retention Warning from [USS SCHENECTADY (LST 1185)]: Advised of deficiency (CO's NJP of 861203.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

870822:  NJP for violation of UCMJ, Article 86: (2 Specs), Spec 1: Unauthorized absence from 0515, 870815 until 0800, 870815; Spec 2: Unauthorized from 0830, 870815 until 0515, 870816.
         Award: Restriction and extra duty for 5 days. No indication of appeal in the record.

 890127:  NJP for violation of UCMJ, Article 91: Insubordinate conduct towards a petty officer on 890117.
         Award: Restriction and extra duty for 7 days. No indication of appeal in the record.
890320:  NJP for violation of UCMJ, Article 86: (2 Specs), Spec 1: Failed to go to appointed place of duty, Spec 2: UA from 0715, 890316 until 0900, 890316.
         Award: Forfeiture of $100.00 per month for 1 month, restriction and extra duty for 15 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.
890321:  Retention Warning from [USS TRUXTON (CGN-35)]. Advised of deficiency (You were convicted at CO's NJP for violation of the UCMJ, Article 86, in that you were absent without leave), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890526:  Punishment of RIR to SA suspended at CO's NJP on 890320 vacated due to continued misconduct.
890526:  NJP for violation of UCMJ, Article 134: Conduct of a nature to bring discredit upon the armed forces.
         Award: Forfeiture of $250.00 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
890722:  NJP for violation of UCMJ, Article 92: (2 Specs), Spec 1: Dereliction in the performance of duties, Spec 2: Failure to obey other lawful orders.
         Award: Forfeiture of $200.00 per month for 1 month, restriction and extra duty for 15 days, reduction to E-1. No indication of appeal in the record.
890812:  [USS TRUXTON (CGN-35)] notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by your six Commanding Officer's non-judicial punishments and two page 13's dated 861203 and 890321 and misconduct due to commission of a serious offense as evidenced by your conviction at Commanding Officer's non-judicial punishment on 861203 and 890722 for failing to obey a lawful order or regulation.
890812:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
891206:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense and that the misconduct warranted separation, and recommended discharge under honorable conditions (general).

900110:  Commanding officer authorized discharge general under honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 891208 under honorable conditions (general) 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’s charter limits its review to a determination on the propriety and equity of the discharge. In the applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s 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. The applicant’s discharge characterization accurately reflects his service to his country. Relief denied.

 Issue 2. A discharge of 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 six 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.

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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