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NAVY | DRB | 2001_Navy | ND01-01106
Original file (ND01-01106.rtf) Auto-classification: Denied


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

ex-AN, USN
Docket No. ND01-01106

Applicant’s Request
The application for discharge review, received 010820, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Hardship. 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 020517. 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 and narrative reason 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 family problems, his wife’s mental health and suicide attempts, and his infant daughter’s care and safety, sufficiently mitigated his misconduct of record to warrant discharge under fully honorable conditions. Moreover, he opines that his family problems were so severe that he should have been separated due to hardship vice misconduct.

2.       This former member further requests 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 June 6, 2001
Performance Review - Non-Exempt Office Associates dated March 21, 2001
Letter of acceptance to the Columbus College of Art and Design dated June 18, 2001
Character reference undated
Character reference dated July 24, 2001
Character reference dated July 20, 2001
Copy of DD Form 214
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)     950520 - 950521  COG

 Period of Service Under Review :
Date of Enlistment: 950522               Date of Discharge: 981125

 Length of Service (years, months, days):

         Active: 03 06 04
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 44

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                           Behavior: NMF             OTA: NMF

 Military Decorations: None

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

 Days of Unauthorized Absence: None

 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 :

951010:  Retention Warning: Advised of deficiency (You have received ten mustering periods of extra military instruction from AOCM M_, on 5 October 1995, for your deficiencies in reporting to your appointed place of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
 951026:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture three days pay for 1 month, restriction for 14 days, No indication of appeal in the record.
951026:  Retention Warning: Advised of deficiency (OIC's Mast, 26 October 1996 for violation of the UCMJ, Article 86: Unauthorized absence, to wit: without authority absent yourself from your organization at or about 0700, 26 October 1995 until 0810, 26 October 1995. Awarded forfeiture of 3 days pay for 1 month and 14 days restriction.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

971113:  NJP for violation of UCMJ, Article 92 (2 specs): (1) Wrongfully transporting an open container in his car, (2) Wrongfully wearing an earring on a military installation, violation of UCMJ, Article 107 (2 specs): Make a false official statement with intent to deceive.
         Award: Oral reprimand, forfeiture of $516.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to AA. Forfeiture for 1 months and reduction suspended for 6 months. No indication of appeal in the record.
981030:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward warrant officer, noncommissioned officer or petty officer on 10Sep98, to wit: did treat with disrespectful in language toward, PNCM (SW) by saying to him, "This is all fucked up, I don't live in the fucking barracks, I have to drive to the base; violation of UCMJ, Article 134: Indecent language on 10Sep98. to wit: by saying "This is all fucked up, I don't live in the fucking barracks, I have to drive to the base, violation of UCMJ, Article 92: Failure to obey order or regulation, to wit: failed to maintain a valid recall number, violation of UCMJ, Article 86: Absence without leave, to wit: failed to muster for Captain's mast at 1100 and did remain absent until he arrived at 1135, 29Oct99.
         Award: Oral reprimand. No indication of appeal in the record.
981110:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
981110:  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.

981110:  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 981125 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. The applicant did not provide sufficient documentation to support his claim that he should have been discharged due to hardship. A characterization of service of under honorable conditions (general) 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 three occasions and adverse counseling entries on other occasions. While he may feel that his family problems and youth were factors that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects a pattern of misconduct, and falls short of that required for an honorable characterization of service. No other narrative reason more clearly describes the circumstances surrounding the applicant’s processing for administrative separation. An upgrade to honorable and change to the narrative reason for separation 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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