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NAVY | DRB | 2001_Navy | ND01-00981
Original file (ND01-00981.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND01-00981

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 avers that his characterization of service is too harsh because his non-judicial punishments awarded on 991119 and 991216 were for only minor incidents and his third, awarded on 000216, was caused by his mental breakdown.

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:
Copy of DD Form 214
Comments from applicant dated June 27, 2001
Ten pages from applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     981021 - 990303  COG

 Period of Service Under Review :
Date of Enlistment: 990304               Date of Discharge: 000505

 Length of Service (years, months, days):

         Active: 01 02 02
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 48

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 04

 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 :

991119:  NJP for violation of UCMJ, Article 134: Wrongfully possess a military identification card on 22Oct99.
         Award: Forfeiture of $207 per month for 1 month, correctional custody for 7 days. Correctional custody suspended. No indication of appeal in the record.
991210:  NJP for violation of UCMJ, Article 92 (2 specs): (1) Fail to obey a lawful order by wrongfully consuming alcohol within 8 hours of duty or any training period on 27Oct99, (2) Fail to obey a lawful order issued by PH1 on 27Oct99, by failing to obey the order and not mustering until 0730, violation of UCMJ, Article 86: Fail to go at the time prescribed to 0600 muster on 27Oct99.
         Award: Forfeiture of $221 per month for 1 month, correctional custody for 7 days. No indication of appeal in the record.
000214:  Applicant surrendered at Portsmouth Naval Hospital.

 000216:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700, 10Feb00 until 1900, 14Feb00 (4 days/surrendered).
         Award: Restriction and extra duty for 45 days. No indication of appeal in the record.
000216:  Retention Warning: Advised of deficiency, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. No further information found in service record. [Extracted from CO's letter dated 24Mar00.]

 000324:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct and commission of a serious offense.
000324:          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

000324:  Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct and commission of a serious offense. Commanding officer’s comments (verbatim): SA (applicant), while only aboard for less than three weeks, was repeatedly in trouble for arriving late for musters and assignments. Eight days prior to OAK HILL's deployment, he deserted his post on a duty day and remained in an UA status for four days at which time he was admitted to Portsmouth Naval Hospital following a suicide attempt. Therefore, SA (applicant) was not aboard OAK HILL for a sufficient period of time to adequately evaluate his performance. SA (applicant) had been dismissed from "A" school prior to joining OAK HILL for alcohol related offenses. In his short time in the Navy, SA (applicant) has proven he can not adapt to military regulations.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000505 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).

The applicant’s first issue states: “(Equity Issue) This former member avers that his characterization of service is too harsh because his non-judicial punishments awarded on 991119 and 991216 were for only minor incidents and his third, awarded on 000216, was caused by his mental breakdown.” The Board found the applicant’s documented misconduct included three NJP’s. The first two NJP’s were for serious military offenses, violation of UCMJ Article 134 and 92. The Board disagrees with the applicant’s trivialization of his misconduct. Additionally, the Board did not find the applicant’s third NJP was mitigated by his “mental breakdown.” Relief is not warranted.

The applicant’s second issue 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.” 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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