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NAVY | DRB | 2002_Navy | ND02-00089
Original file (ND02-00089.rtf) Auto-classification: Denied


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


ex-AR, USN
Docket No. ND02-00089

Applicant’s Request
The application for discharge review, received 011010, requested that the characterization of service on the discharge be changed to honorable. 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 020619. 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'm asking for consideration for an upgrade to Honorable Discharge to obtain eligibility for VA Education. I feel that my discharge could have been handled differently with equity and fairness to the service and to myself as well. I feel that I have matured since service and I have contributed to my community.
Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION." None were found.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of letter of commendation
Character reference dated June 6, 1993
 Copy of letter of appreciation dated July 20, 1988
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USNR (DEP)     880222 - 880424  COG
Period of Service Under Review :
Date of Enlistment: 880425               Date of Discharge: 911025

 Length of Service (years, months, days):
         Active: 03 06 01
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 41
Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.97 (6)    Behavior: 2.47 (6)                OTA: 3.04
Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, BEA (2), NDSM, Letter of Commendation, Letter of Appreciation
Days of Unauthorized Absence: 3

 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 :

880703:  Applicant arrested by Shelby County Police Department at 0100, 3Jul88.
880705:  Applicant to unauthorized absence 0600, 5Jul88.

 880707:  Applicant released from jail at 1700, 7Jul88 on $1000.00 bond and surrendered to NATTC on 1930, 7Jul88 (2 days/surrendered).
880703:  Civil Conviction: Memphis, TN for violation of malicious mischief.
 Sentence: Fine $427.74 (includes court costs).
880815:  NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence on 5Jul88 - 7Jul88 (2 days) and 31Jul88, violation of UCMJ, Article 92: Failure to obey a lawful order/regulation on 31Jul88.
         Award: Forfeiture of $144 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
880815:  Retention Warning from Naval Air Technical Training Center, Naval Air Station, Memphis, TN: Advised of deficiency (Violation Article 86 (2 specs): (1) UA from 0600, 5Jul88 until 1930, 7Jul88 (2 days), (2) UA from 0700-1129, 31Jul88, violation Article 92: Wore civilian attire without a NATTC special privilege card on 31Jul88.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880912:  NJP for violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty on 25Aug88, violation of UCMJ, Article 92: Failure to obey a lawful order/regulation on 1Sep88, violation of UCMJ, Article 113: Misbehavior of sentinel or lookout on 26Aug88.
         Award: Forfeiture of $156 per month for 1 month, correctional custody for 7 days. No indication of appeal in the record.
881013:  NJP for violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty.
         Award: Forfeiture of $156 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
890501:  NJP for violation of UCMJ, Article 86: Unauthorized absence, 17Apr89.
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 20 days. No indication of appeal in the record.
890503:  Retention Warning from USS BELLEAU WOOD (LHA-3): Advised of deficiency (This is your fourth NJP and you have established a pattern of disregard for military authority. You have been convicted of violating the UCMJ as follows: Article 86: Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890605:  NJP for violation of UCMJ, Article 86: Unauthorized absence, 28May89.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 15 days. Restriction for 15 days suspended for 3 months. No indication of appeal in the record.
890707:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation, 26Jun89.
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 10 days, reduction to AR. Reduction suspended for 6 months. No indication of appeal in the record.
900502:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record. [Extracted from CO's letter dated 25Sep91.]
900713:  NJP for violation of UCMJ, Article 86: Absent from unit 1330, 7Jul90 to 0700, 9Jul90 (1 day/surrendered).
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
900921:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty, violation of UCMJ, Article 92: Failure to obey a lawful order.
         Award: Correctional custody for 30 days. No indication of appeal in the record. Correctional custody delay until 25Sep90 due to unavailability of adequate facilities.
910308:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0645-0905, 6Mar91, violation of UCMJ, Article 92: Failure to obey general regulation, to wit: U.S. Navy Uniform Regs, Sect. 2201.6, by wrongfully wearing an earring on 21Feb91.
         Award: Forfeiture of $75 per month for 2 months, restriction and extra duty for 10 days. No indication of appeal in the record.
910425:  NJP for violation of UCMJ, Article 92: Dereliction of duty by sleeping while standing Rover Watch on 18Apr91.
         Award: Restriction and extra duty for 20 days. No indication of appeal in the record.
910607:  NJP for violation of UCMJ, Article 92: Failure to obey general regulation to wit: U.S. Navy Regulations, Section 2201.6, Chap 2, para 6B, by wearing an earring on 31May91.
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.
910912:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0645-0750, 28Aug91, violation of UCMJ, Article 91 (2 specs): (1) Disrespectful language toward petty officer on 6Sep91, (2) Willfully disobeying lawful order of a petty officer on 6Sep91, violation of UCMJ, Article 134: Communicating a threat to a petty officer to kill him.
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 30 days, reduction to AA. No indication of appeal in the record.
910919:  NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana on 29Aug91.
         Award: Reduction to AR. No indication of appeal in the record.
910923:  USS BELLEAU WOOD (LHA 3) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to drug abuse, and misconduct due to a commission of a serious offense.
910923:  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.
910925:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to drug abuse, and misconduct due to a commission of a serious offense.
911002:  Substance Abuse Interview: Applicant found not dependent.
911021:  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 911025 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing opportunities to receive post-service benefits as requested in the issue. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure of that expected of a sailor. T he applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on fourteen 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 to honorable would be inappropriate. Relief denied.

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, 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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