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NAVY | DRB | 2002_Navy | ND02-00006
Original file (ND02-00006.rtf) Auto-classification: Denied


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

ex-AQAR, USN
Docket No. ND02-00006

Applicant’s Request
The application for discharge review, received 010926, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant did not list any 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 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. The discharge is unfair because it was based on one incident, that was not unduly severe. I went UA because of an inability to deal with personal issues because of the immaturity of youth.

2. I wish the discharge changed because this black mark has followed me around for twelve years.

3. I was a very young man. I made a mistake.

4. I returned to NAS Cecil Field, of my own free will, before I would be considered awol. I apologized and when the captain asked me if I wanted to stay in the navy, I responded with an emphatic yes.

5. I do not wish to reap any rewards, benefits or privileges from the upgrade. I just want to correct an inequity.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     870311 - 870818  COG

 Period of Service Under Review :
Date of Enlistment: 870819               Date of Discharge: 890522

 Length of Service (years, months, days):

         Active: 01 08 11
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 92

 Highest Rate: AQAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.50 (2)    Behavior: 3.30 (2)                OTA: 3.30

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

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 :

880210:  Retention Warning from [Naval Air Technical Training Center, Naval Air Station Memphis, TN]: Advised of deficiency (Violation of Article 134: Weapon: Concealed, carrying, to wit: SNM did, while on board NAS Memphis, on or about 880123, unlawfully carry on or about his person a concealed weapon, to wit: A 5" stainless steel knfe), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880210:  NJP for violation of UCMJ, Article 134: Carrying concealed weapon on 880123.
         Award: Forfeiture of $352.00 per month for 1 month, restriction for 30 days (suspended for 6 months), extra duty for 30 days. No indication of appeal in the record.

881229:  Retention Warning from [Strike Fighter Squadron 136, NAS Cecil Field, FL]: Advised of deficiency (On 881229 you were awarded CO's NJP for a VUCMJ Article 86 (3 Specs), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

881229:  NJP for violation of UCMJ, Article 86: (3 Specs), UA.
         Award: Forfeiture of $100.00 pay per month for 1 month, CCU for 30 days, reduction in rate (suspended for 6 months). No indication of appeal in the record.

890315:  Punishment of RIR to AQAR suspended at CO's mast of 881229 vacated due to continued misconduct.

890315:  NJP for violation of UCMJ, Article 86: (2 Specs), UA.
         Award: Forfeiture of $349.00 pay per month for 2 month, restriction to NAS Cecil Field, FL for 30 days. No indication of appeal in the record.
890327:  Strike Fighter Squadron 136 notified applicant 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.
890330:          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.
890504:  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.

890506:  CNMPC 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 890522 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 applicant states his discharge was based on one incident of unauthorized absence. However, the Board found his discharge was based on a pattern of misconduct. 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 two occasions and adverse counseling entries on other 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 an honorable characterization of service. 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. Relief denied.

Issue 3. The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his youth was a factor 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. Relief denied.

Issue 4. The Board found no inequity or impropriety in the award of NJP for any of the applicant’s offenses, to include his final offense of unauthorized absence in March of 1989. The applicant’s claim that he desired to remain in the Navy does not mitigate his misconduct. Relief denied.

Issue 5. The applicant failed to convince the Board of an inequity that occurred during his enlistment. The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. 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 15560A, Change 6 effective 11 Jan 89 until 24 May 89), 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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