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NAVY | DRB | 2001_Navy | ND01-00977
Original file (ND01-00977.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND01-00977

Applicant’s Request
The application for discharge review, received 010725, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed the American Legion as the 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

1. (Equity Issue) This former member proffers that he regrets his misconduct of record, has learned from is mistakes and would now like his discharge upgraded so that he can re-enter the military.

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:
Statement from applicant dated May 30, 2001
Letter from applicant dated June 13, 2001
Copy of DD Form 214
Letter to congressman dated September 14, 2000
Eight pages from applicant's service record
Character reference from Chief Deputy dated June 15, 2001
Character reference dated June 18, 2001
Character reference from pastor dated June 14, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     000224 - 000327  COG

 Period of Service Under Review :
Date of Enlistment: 000328               Date of Discharge: 000817

 Length of Service (years, months, days):

         Active: 00 04 20
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 59

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 4

 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 :

000720:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation on 7Jul00, to wit: consuming alcohol while under the legal drinking age of 21.
         Award: Forfeiture of $465 per month for 2 months, restriction and extra duty for 45 days. Forfeiture of $232.00 per month suspended for 6 months. No indication of appeal in the record.
000720:  Retention Warning: Advised of deficiency (Failure to obey order or regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000721:  Vacate suspended forfeiture awarded at CO's NJP dated 20Jul00.

 000728:  NJP for violation of UCMJ, Article 86: Absence without leave on 1630, 20Jul00 to 2011, 24Jul00 (4 days), violation of UCMJ Article 134: Break restriction on 20Jul00.
         Award: Forfeiture of $502 per month for 2 months, restriction and extra duty for 45 days. Suspend forfeiture, restriction and extra duty for 6 months. No indication of appeal in the record.
000728:  Retention Warning: Advised of deficiency (Absence without leave, and breaking restriction.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000802:  Vacate suspended forfeiture, restriction and extra duty awarded at CO's NJP dated 28Jul00. Extracted from CO's letter dated 7Sep00.
000802:  NJP for violation of UCMJ, Article 86: Absence without leave on 2315, 29Jul00 to 0325, 30Jul00, violation of UCMJ, Article 134: Breaking restriction on 29Jul00.
         Award: Forfeiture of $502 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
000802:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.
000803:          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

000907:  Commanding officer directed discharge general (under 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 000817 general (under 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 states: “(Equity Issue) This former member proffers that he regrets his misconduct of record, has learned from is mistakes and would now like his discharge upgraded so that he can re-enter the military.” The NDRB will change a discharge if an impropriety or inequity exists. The Board carefully reviewed the applicant’s service record and found the applicant had three NJP’s and two retention warnings in his four months of service. The applicant demonstrated through his misconduct that he was unfit for further service. The NDRB found the discharge proper and equitable. The NDRB will not change a discharge for re enlistment opportunities. Relief is denied.

Issue 2 states: “(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.” The following is provided for the benefit of the applicant. 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 clemency, 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.

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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