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NAVY | DRB | 2001_Navy | ND01-01184
Original file (ND01-01184.rtf) Auto-classification: Denied


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

ex-GMGSA, USN
Docket No. ND01-01184

Applicant’s Request
The application for discharge review, received 010830, 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 listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020419. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. I have completed and received an Honorable discharge for my first enlistment. Then on my second enlistment I received a general under honorable conditions. My commanding office told me that since I had finished my first enlistment, that I was eligible for all my benefits including the G.I. Bill.

 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 United States and all of the evidence assembled for review, we continue to note the request of the appellant of an upgrade of his General, Under Honorable Conditions discharge, to that of Honorable, allowing for equitable relief The records reflect the FSM served in the United States Navy from February 9, 1993 to October 31, 1997, with a narrative reason for separation as Pattern of Misconduct. This reflects a 4 year period of active service with the FSM listing no specific issues, but the evidentiary record reflects good to average performance, evident by the award of an Honorable discharge, and the award of the Good Conduct Medal, etc., Therefore the length and quality of that service must be considered. In that the FSM may have eight months of the Navy service wherein he had difficulties, but the rest of his service is believed to have been good service entitling him to an Honorable discharge. 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.
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: USN               930209 - 970207  HON
         Inactive: USNR (DEP)     890425 - 891023  ELS
                  USNR (DEP)      921223 - 930208  COG

 Period of Service Under Review :
Date of Enlistment: 970208               Date of Discharge: 971031

 Length of Service (years, months, days):

         Active: 00 08 24
         Inactive: None

 Age at Entry: 25                          Years Contracted: 2

 Education Level: 12                        AFQT: 47

 Highest Rate: GMG3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NER, SSDR (1 Star), GCM, AFSM (1 Star), NATO, NUC, AFEM

 Days of Unauthorized Absence: 17

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

970703:  NJP for violation of UCMJ, Article 90: Willfully disobeying the commanding officer.
         Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 30 days, reduction to GMGSN. No indication of appeal in the record.
970708:  Retention Warning: Advised of deficiency (Unreadable.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970929:  Applicant to unauthorized absence 0700, 29Sep97.

970929:  Applicant apprehended by Virginia Beach Police Department.

971016:  Applicant from unauthorized absence 0800, 16Oct97 (17 days/ surrendered).

971027:  NJP for violation of UCMJ, Article 87: Missing ship's movement on 14Oct97, violation of UCMJ, Article 86: Unauthorized absence.
         Award: Restriction and extra duty for 45 days, reduction to GMGSA. No indication of appeal in the record.
971027:  Applicant notified of intended recommendation for discharge under honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment.
971027:          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

Partial discharge package missing.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 971031 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 Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Relief denied.

Issue 2. A characterization of service of General (under 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 during his second enlistment was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on two occasions and an adverse counseling entry 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 naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief denied.

With the DD-214 administrative error noted on page one of this document corrected, the applicant’s discharge characterization will accurately reflect 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 14, effective 03 Oct 96 until 11 Dec 97), 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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