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NAVY | DRB | 2002_Navy | ND02-00112
Original file (ND02-00112.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND02-00112

Applicant’s Request
The application for discharge review, received 011018, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing before a traveling panel closest to New Orleans, LA. The applicant listed American Legion as her representative on the DD Form 293. In the acknowledgement letter to the applicant, she was informed that the Naval Discharged Review Board (NDRB) does not travel, all hearings are held in the Washington, DC area. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020620. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. (Equity Issue) Her violations of the UCMJ notwithstanding, this former member opines that her overall service record is sufficient to warrant discharge under honorable conditions.

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:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     901115 - 910414  COG

 Period of Service Under Review :
Date of Enlistment: 910415               Date of Discharge: 940322

 Length of Service (years, months, days):

         Active: 02 11 08
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 52

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.80 (2)    Behavior: 1.90 (2)                OTA: 2.40

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

911025:  NJP for violation of UCMJ, Article 86: Leaving place of duty 1025-1825, 14Sep93, violation of UCMJ, Article 91: Disrespect toward petty officer, violation of UCMJ, Article 92 (2 specs): (1) Failure to obey lawful written order, to wit: SIQ chit, (2) Failure to obey verbal orders to stay in her room, violation of UCMJ, Article 134: Wrongful use of previously issued liberty card.
         Award: Forfeiture of 7 days pay, restriction for 14 days. No indication of appeal in the record.
911025:  Retention Warning from Naval Technical Training Center, Corry Station, Pensacola, FL: Advised of deficiency (Leaving place of duty. Disrespect toward petty officer. Failing to go to place of duty. Failure to obey a lawful written order. Failure to obey a lawful verbal order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930201:  NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence 0730-0745, 4Dec92, (2) Unauthorized absence 0730-0741, 15Jan93, (3) Unauthorized absence 1200, 19Jan93 to 0945, 20Jan93.
         Award: Forfeiture of $456.00 per month for 1 month, reduction to SR. Reduction suspended for 6 months. No indication of appeal in the record.
930217:  Retention Warning from Enlisted Personnel Management Center, New Orleans, LA: Advised of deficiency (Unauthorized absences, tardiness for work, failure to make muster, utilizing your chain of command, personal appearance and military bearing, appropriate wearing of the military uniform.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930507:          Counseling: Advised of deficiency (professional performance and conduct), notified of corrective actions and assistance available.

931101:  Counseling: Advised of deficiency (other, to wit: operating private vehicle when medical statement prohibits operation of any vehicle while using prescribed medication.), notified of corrective actions and assistance available.
931112:  Counseling: Advised of deficiency (Conduct), notified of corrective actions and assistance available.

940110:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 14Dec93, violation of UCMJ Article 91 (2 specs): (1) Insubordinate conduct towards a noncommissioned officer on 15Dec93, (2) Insubordinate conduct towards a noncommissioned officer on 6Jan94,
         Award: Reduction to SR. Appealed 940114. Appealed denied 940204.

940111:  Counseling: Advised of deficiency (professional performance, military bearing, cooperation, conduct and report chit), notified of corrective actions and assistance available.

940112:  Enlisted Personnel Management Center notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct as evidenced by service record entries.
940114:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
940118:  Counseling: Advised of deficiency (Report chit for being 15 minutes late for work.), notified of corrective actions and assistance available.

940120:  Counseling: Advised of deficiency (Muster for work.), notified of corrective actions and assistance available.

940203:  Counseling: Advised of deficiency (Professional performance and continues to show up late for work.), notified of corrective actions and assistance available.

 940208:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

940218:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

940317:  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 940322 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 disagrees with the applicant’s assertion that her overall service record warrants a discharge under honorable conditions. 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. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. T he applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions, two retention warnings and documented deficiency counseling entries on four other occasions. The applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her 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. It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges. In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. Therefore, the applicant’s service is equitably characterized as being performed under other than honorable conditions. Relief is not warranted.

Issue 2: The applicant’s discharge characterization accurately reflects her service to her 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, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and proof of her 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 her discharge. She is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her 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 5, effective 05 Mar 93 until 21 Jul 94), 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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