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NAVY | DRB | 2001_Navy | ND01-00888
Original file (ND01-00888.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND01-00888

Applicant’s Request
The application for discharge review, received 010627, 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. Subsequent to the application for review the applicant elected Veterans of Foreign Wars as representation.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020110. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. We ask that you consider the applicant’s contentions and the evidence of record and that you change the discharge as requested.

 Documentation
In addition to the service record, 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)     920924 - 921101  COG

 Period of Service Under Review :
Date of Enlistment: 921102               Date of Discharge: 950506

 Length of Service (years, months, days):

         Active: 02 06 02
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 41

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (2)    Behavior: 3.00 (2)                OTA: 3.10

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 3

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

940209:  NJP for violation of UCMJ, Article 86: (2 Specs): Spec 1: UA from 940121 until 940124 (3days/S); Spec 2: Fail to go to appointed place of duty, to wit: Morning muster.
Award: Restriction and extra duty for 10 days. No indication of appeal in the record.
940209:  Retention Warning from USS JOHN F. KENNEDY (CV-67): Advised of deficiency (Misconduct as evidenced by your Captain's Mast on 940209, for violation of the UCMJ, Art. 86 x 2: Spec 1: On or about 940121, on active duty, did, without authority, absent yourself from your unit, to wit: USS JOHN F. KENNEDY, located at Naval Station, Philadelphia, PA., and did remained absent until on or about 940124, a period of 3 days; Spec 2: At or about 0700, 940202, on active duty, did, without authority, fail to go at the time prescribed to your appointed place of duty, to wit: Morning muster. Should your misconduct continue , you will create an adverse pattern of misconduct), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940915:  NJP for violation of UCMJ, Article 86: (6 Specifications), Spec 1: UA from unit 0600, 940621 until 0730, 940621; Spec 2: UA from unit 0730, 940621 until 1230, 940621, Spec 3: UA from unit 0700, 940622 until 0830, 940622; Spec 4: Fail to go to appointed place of duty, to wit: Aftercare Treatment Group Counseling Meeting; Spec 5: UA from unit 0700, 940624 until 0740, 940624; Spec 6: UA from unit 0700, 940627 until 0900, 940627.
         Award: Forfeiture of 1/2 pay per month for 1 month (suspended for 4 months), restriction and extra duty for 20 days (suspended for 4 months), reduction in rate (suspended for 4 months). No indication of appeal in the record.

950119:  NJP for violation of UCMJ, Article 86: On or about 941207, UA from his appointed place of duty, to wit: Command Urinalysis.
         Award: Forfeiture of $478.00 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.

950209:  USS JOHN F. KENNEDY (CV-67) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
950209:          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.

950301:  Psychiatric evaluation reveals applicant is not psychologically or physically dependent on drug or alcohol.

950316:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

950511:  BUPERS 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 950506 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: “We ask that you consider the applicants contentions and the evidence of record and that you change the discharge as requested.” The NDRB is chartered to review the records of former service members, for propriety and equity, provided the discharge occurred less than fifteen years from the current date. The applicant was discharged after receiving NJP on three occasions, for violations of the UCMJ, in addition to receiving a retention warning following the first NJP. The retention warning gave the applicant the opportunity to conform to military regulations and continue his military career with a clean slate. The applicant did not modify his behavior. His total disregard for Navy rules and regulations was clearly established by his repeated misconduct. The discharge was proper and equitable. Relief is denied.

The following is provided for the applicant’s benefit. There is no law or regulation that provides for an unfavorable discharge to 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 existed during the period of enlistment in question. No such error occurred in this case. 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 any documentary evidence to demonstrate voluntary community service, a positive employment history, and clean police record. The discharge was proper and equitable. Therefore, relief is not warranted.

The applicant is 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 15560C, Change 9, effective
22 Jul 94 until 02 Oct 96), 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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