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NAVY | DRB | 2001_Navy | ND01-01079
Original file (ND01-01079.rtf) Auto-classification: Denied


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

ex-RMSA, USN
Docket No. ND01-01079

Applicant’s Request
The application for discharge review, received 010816, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The applicant listed the Disabled American Veterans as the representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020328. 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/Misconduct - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I was under the impression when I was discharged it was a general/under honorable conditions. When I signed my blank discharge papers, because I requested the early out program due to my family situation.

2. After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the Untied States and all of the evidence assembled for review, we continue to note the request of the appellant of an upgrade of his Under Other Than Honorable Conditions discharge, to that of Honorable, allowing for equitable relief. The records reflect the FSM served in the United States Navy from March 7, 1990 to August 3, 1992, with a narrative reason for separation as Misconduct - Pattern of Misconduct. This reflects a one and a half year period of active service. Therefore, the length and quality of that service must be considered. In that the FSM maintains that when he was discharged he signed a blank document, but was told it would be a General Under Honorable Conditions discharge, as he was receiving an early out due to family problems. In light of the FSM's request we ask that in the course of the discharge review, if it is determined that the policies and procedures under which that applicant was discharged differ in material respects from policies and procedures currently applicable on a service wide basis to discharges of the type under consideration, and that full consideration be given to a change of the current discharge on the basis of equity in accordance with SECNAVINST regulations.
Since the assignment of the type of discharge is based upon the seriousness of the offense, we ask that consideration be given to an assignment of a General, Under Honorable Conditions discharge, as we believe the regulations will allow for this latitude. We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
 Copy of DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     900201 - 900306  COG

 Period of Service Under Review :
Date of Enlistment: 900307               Date of Discharge: 920803

 Length of Service (years, months, days):

         Active: 02 04 27
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 52

 Highest Rate: RM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.15 (4)    Behavior: 3.15 (4)                OTA: 3.53

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NDSM, SASM

 Days of Unauthorized Absence: 5

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

920518:  Applicant to unauthorized absence 0515, 18May92.

 920519:  Applicant from unauthorized absence 0530, 19May92 (1 day/surrendered).
920520:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 18May92.
         Award: Written admonition. No indication of appeal in the record.
920521:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 21May92.
         Award: Restriction and extra duty for 45 days, reduction to RMSN. Reduction suspended for 6 months. No indication of appeal in the record.
920521:  Retention Warning from USS ELROD (FFG 55): Advised of deficiency (Repeated unauthorized absences due to personal problems and irresponsibility.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920522:  Retention Warning from USS ELROD (FFG 55): Advised of deficiency (Absence without leave.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920625:  Retention Warning from USS ELROD (FFG 55): Advised of deficiency (Absence without leave.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920626:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 23Jun92.
         Award: Extra duty for 60 days. No indication of appeal in the record.
920718:  Applicant to unauthorized absence 0730, 18Jul92.

920722:  Applicant from unauthorized absence 1950, 22Jul92 (4 days/surrendered)

 920723:  Vacate suspended reduction to RMSN awarded at CO's NJP 21May92 due to continued misconduct.
920723:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 19Jul92.
         Award: restriction and extra duty for 45 days, reduction to RMSA. No indication of appeal in the record.
920723:  USS ELROD (FFG-55) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
920723:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
920813:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

920731:  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 920803 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).

Issues 1 and 2. The Board found no evidence in the record to support the applicant’s issue that he signed blank discharge papers and expected to receive a General discharge for separation due to family problems. The record shows the applicant was notified of the discharge recommendation by his chain of command. The record also shows the applicant consulted with counsel while being processed for discharge. The applicant’s notification document was signed by the applicant and a witness. The Board determined the discharge was proper and equitable. Relief based on these issues is 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 clemency, based on post-service conduct. The applicant did not provide any of these documents. 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, effective 15 Aug 91 until
04 Mar 93), 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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