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NAVY | DRB | 2001_Navy | ND01-01043
Original file (ND01-01043.rtf) Auto-classification: Denied


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

ex-EMFA, USN
Docket No. ND01-01043

Applicant’s Request
The application for discharge review, received 010807, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by the Veterans of Foreign Wars.

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

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. I feel that my discharge should be changed on the grounds that it prevents me from joining the military again, I would very much like to go back in the military, but discharge prevents that.

2. The Veterans of Foreign Wars of the United States appreciates the opportunity to have conducted a review of the aforementioned applicants case file on October 3, 2001. The following issues are presented in addition to any/none listed in item 8, DD Form 293. IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chaptex9, paragraph 9.3, Equity of Discharge. The Veterans of Foreign Wars of the United States' express purpose in providing this review, and any other submittals or opinions of record, is to aid the applicant in resolving any improprieties or inequities in the character and basis for discharge. After reviewing all available evidence, we ask the Board to resolve any doubt in favor of the applicant and to grant the action requested as entitled under Title 10 U-S-C., Section 1553.

 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: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 961024               Date of Discharge: 991119

 Length of Service (years, months, days):

         Active: 03 02 26
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 55

 Highest Rate: EMFN

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM (2), MUC, NUC, NER (2), SSDR

 Days of Unauthorized Absence: 13

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

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

 Chronological Listing of Significant Service Events :

970710:  NJP for violation of UCMJ, Article 134: As a result of wrongful previous overindulgence in intoxicating liquor or drugs incapacitated for the proper performance of duties.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 7 days. No indication of appeal in the record.
980714:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of $300 per month for 1 month, restriction for 20 days, reduction to EMFR. Reduction suspended for 6 months. No indication of appeal in the record.
980714:  Retention Warning: Advised of deficiency (Unauthorized absence from appointed place of duty, to wit: Divisional workspace), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990610:  NJP for violation of UCMJ, Article 86 (3 specs): (1 and 2) Fail to go at the time prescribed to appointed place of duty on 0715-0900, 11May99, 0715-0845, 13May99, (3) Unauthorized absence from 0715, 25May99 to 1747,7Jun99 (13 days/surrendered); violation of UCMJ, Article 112: Drunk on duty on 13May99.
         Award: Forfeiture of $538 per month for 2 months, restriction and extra duty for 45 days, reduction to EMFA. Forfeiture of $538 for 1 month and reduction suspended for 6 months. No indication of appeal in the record.

990719:  Drug and Alcohol Abuse Report: Alcohol abuse, shipboard on 970611. CAAC recommended Level I. Commanding officer recommended retention and level I treatment, not including NADSAP.
990902:  NJP for violation of UCMJ, Article 78: Preventing the apprehension of a known deserter of the Armed Forces, violation of UCMJ, Article 81: Conspiracy to obstruct justice, violation of UCMJ, Article 107: False official statement, violation of UCMJ, Article 134: Drunk on duty.
         Award: Forfeiture of $538 per month for 2 months, restriction for 60 days, reduction to EMFA. No indication of appeal in the record.
990914:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.
990914:  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.

991102:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.

991110:  COMCARGRU THREE 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 991119 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).

Issue 1. The NDRB will not change the discharge of a former service member to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. A characterization of service of under other 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 four 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 a characterization of service under honorable conditions. An upgrade would be inappropriate. Relief denied.

Issue 2. The applicant’s discharge characterization accurately reflects his service to his country. The 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. 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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