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NAVY | DRB | 2001_Navy | ND01-00808
Original file (ND01-00808.rtf) Auto-classification: Denied


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

ex-FR, USNR
Docket No. ND01-00808

Applicant’s Request
The application for discharge review, received 010529, 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 020221. 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: GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. Dear DRB (or) BCMR: The following issues are the reasons I believe my discharge should be upgraded to honorable. If you disagree, please explain in detail why you disagree. The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting. I believe I deserve an honorable discharge because I was so close to finishing my tour, that it was unfair to give me a discharge of general under honorable conditions. I was a day away from honorable. I agree my ability to serve was impaired by my youth and immaturity. I came straight from the urban streets of Philadelphia to the quiet town of Pascagoula M.S. and due to my family and child care problems and my personal and financial problems, I was under a lot of stress which drove me to drink. And the use of alcohol impaired my ability to serve. I once went to NJP and the commanding officer asked me can I finish my tour, I said yes I proved I could because I was less than eight hours away from an honorable. I have been a good citizen since discharge. I'm doing great as a citizen, but I need help with the financing of school. But with a general under honorable conditions I cannot use my G.I. Bill, so as a sailor who did 2 years 11 months 29 days out of 3 years contract, I just want to be financially stable to send my daughters to collage. I thank you for your time. .

 Documentation
In addition to the service record, we were unable to obtain the discharge processing package. The following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 960229               Date of Discharge: 990713

 Length of Service (years, months, days):

         Active: 02 11 29
         Inactive: 00 04 16

 Age at Entry: 18                          Years Contracted: 3

 Education Level: 12                        AFQT: 32

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.50 (2)    Behavior: 2.00 (2)                OTA: 2.40 (5.0 Evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, JMUC

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

960715:  Ordered to active duty for 36 months under the Airman Apprenticeship Training program.

970430:  NJP for violation of UCMJ, Article 128: Assault consummated by a battery).
         Award: Restriction and extra duty for 30 days (suspended). No indication of appeal in the record.

970502:  Retention Warning: Advised of deficiency (Inability to conform to military standards of conduct), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

971024:  Retention Warning: Advised of deficiency (UCMJ Article 91, insubordinate conduct toward a chief petty officer (x2), UCMJ Article 92, Failure to obey order or regulation), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980507:  Retention Warning: Advised of deficiency (Violation UCMJ Article 92, Dereliction in the performance of duties; Article 91, insubordinate conduct toward a petty officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980507:  NJP for violation of UCMJ, Article 92: Dereliction in the performance of duties, violation of UCMJ Article 91: Insubordinate conduct toward a petty officer.
Award: Restriction for 1 day, extra duty for 21 days. No indication of appeal in the record.
990115:  NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ Article 89: Disrespect toward a Superior Commissioned Officer.
Award: Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.
990528:  NJP for violation of UCMJ, Article 128: Assault upon a petty officer.
Award: Forfeiture of $300.00 pay per month for 1 month, restriction and for 45 days, reduction to E-1. No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant received a general (under honorable conditions) discharge on 990713 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 found no inequity or impropriety in the fact that the applicant was administratively separated with a general (under honorable conditions) discharge one day prior to his end of active service. A characterization of service of general (under 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. The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his immaturity, youth and alcohol use were factors that contributed to his actions, 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. Additionally, the Board will not grant releif to allow a former service member to use veteran’s benefits. Relief denied.
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 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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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