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NAVY | DRB | 2001_Navy | ND01-01146
Original file (ND01-01146.rtf) Auto-classification: Denied


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

ex-EWSA, USN
Docket No. ND01-01146

Applicant’s Request
The application for discharge review, received 010905, 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 020715. 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, as submitted

1. (Equity Issue) This former member proffers that his discharge is too harsh in light of his overall service record and thereby warrants upgrade to fully honorable.

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
Copy of DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     971113 - 971123  COG

 Period of Service Under Review :
Date of Enlistment: 971124               Date of Discharge: 001107

 Length of Service (years, months, days):

         Active: 02 11 14
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 82

 Highest Rate: EWSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (3)    Behavior: 2.00 (3)                OTA: 2.78

 Military Decorations: None

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

 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 :

980402:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation on 5 Mar 98.
         Award: Restriction and extra duty for 30 days. No indication of appeal in the record.
981124:  NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ, Article 92: Willful disobedience of warrant, noncommissioned, or petty officer.
         Award: Forfeiture of $463 per month for 1 month, restriction for 21 days, reduction to EWSR. No indication of appeal in the record.
981124:  Retention Warning: Advised of deficiency (absence without leave and missing movement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990430:  Applicant completed treatment for substance dependence.
001010:  NJP for violation of UCMJ, Article 134: Drunk and disorderly conduct.
         Award: Forfeiture of $563.70 per month for 2 months, restriction and extra duty for 45 days, reduction to EWSA. No indication of appeal in the record.
001013:  Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in the current enlistment and alcohol rehabilitation failure as evidenced by all alcohol related incidents in the current enlistment.
001013:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

001129:  Commanding officer directed discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct. Commanding officer’s comments indicated the applicant was an inconsistent worker while on board LAKE CHAMPLAIN. As a watchstander at sea he showed unlimited potential but while in port (when alcohol was accessible) he became a major burden on his division. In November 1998 applicant was scheduled to attend Level II SARD however he absented himself from this treatment and subsequently went to Commanding Officer's Nonjudicial Punishment. Applicant attended SARD again and successfully completed treatment in April 1999. However, on 10 October 2000 applicant again attended NJP for violation of UCMJ Article 134, Drunk and Disorderly conduct. Commanding officer further stated: Applicant is an alcoholic, who cannot overcome his disease, and therefore I could not retain him because of the liabilities he presented to my ship, crew, and the Navy.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 001107 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. 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 another occasion. 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 the naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief denied.

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