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NAVY | DRB | 2002_Navy | ND02-00194
Original file (ND02-00194.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND02-00194

Applicant’s Request
The application for discharge review, received 020102, 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. In the acknowledgement letter the applicant was informed that she was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area. The applicant responded advising that she was not financially able to appear in person.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 020731. 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, as submitted

 1. The only other issue I wish to have considered is a possible upgrade on my reenlistment code so I could be eligible to apply to the National Guard and assist in Homeland Security Defense.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Letter from Applicant
Employment Reference Letter dtd November 10, 2001
Character Reference Letter from L____ D. O___, MSgt. Ret.
Letter from Applicant dtd January 15, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     840117 - 840904  COG

 Period of Service Under Review :
Date of Enlistment: 840905               Date of Discharge: 871023

 Length of Service (years, months, days):

         Active: 03 01 19
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 50

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.70 (2)    Behavior: 3.40 (2)                OTA: 3.70

 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 :

860801:  Retention Warning from Naval Administrative Command Naval Training Center San Diego, CA: Advised of deficiency (Driving under the influence of alcohol), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

861223:  Retention Warning from Naval Administrative Command Naval Training Center San Diego, CA: Advised of deficiency (Disobeying a lawful written order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

861223:  NJP for violation of UCMJ, Article 92: Failed to obey a lawful order on 861213.
Award: Restriction and extra duty for 15 days, reduction to E-2 (RIR only suspended for 3 months). No indication of appeal in the record.
870312:  Punishment of RIR suspended at CO's NJP of 861223 vacated due to continued misconduct.

870312:  NJP for violation of UCMJ, Article 86: UA from her place of duty 870207, violation of UCMJ Article 92: (2 Specs), failed to perform her duties, dereliction in the performance of her duties 870207, and 870217.
         Award: Forfeiture of $200.00 pay per month for 2 months (suspended for 3 months), restriction and extra duty for 30 days. No indication of appeal in the record.

870402:  Punishment of Forfeiture of $200.00 pay per month suspended at CO's NJP of 870312 vacated due to continued misconduct.

870402:  NJP for violation of UCMJ, Article 92: Failed to obey a lawful order on 870320.
Award: Reduction to E-1. No indication of appeal in the record.
870403:  CO's NJP OF 861223 Disallowed this date. All rights and privileges restored.

870709:  NJP for violation of UCMJ, Article 86: Unauthorized absence on or about 870602 for a period of 2 hours and 15 minutes, violation of UCMJ Article 92: Failure to obey order or regulation on or about 870607.
         Award: Forfeiture of $329.00 pay per month for 2 months, restriction to the confines of NAVSTRAST SAN DIEGO for 45 days, extra duty for 45 days. No indication of appeal in the record.

870827:  NJP for violation of UCMJ, Article 111: Driving while intoxicated on or about 870617 at Naval Training Station, San Diego; violation of UCMJ Article 92: Failure to obey order on or about 870617.
         Award: Forfeiture of $200.00 pay per month for 2 months, restriction to the confines of Naval Training Station, San Diego for 30 days (suspended for 3 months). No indication of appeal in the record.
870827:  Naval Training Station, San Diego notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by five non-judicial punishments within her current enlistment and one civilian conviction for driving under the influence of alcohol on 870825.
870827:  Applicant advised of her rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
870914:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by five non-judicial punishments within her current enlistment and one civilian conviction for driving under the influence of alcohol on 870825.

871009:  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 871023 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 has requested an upgrade on her re-enlistment code so she can apply to the National Guard and assist in Homeland Security Defense. The NDRB is authorized to review the propriety and equity of discharges issued by the U.S. Navy or the U.S. Marine Corps. The NDRB has no authority to change reenlistment codes or to make recommendations for reentry into the Naval Service, National Guard, or any other of the Armed Forces. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief, on this basis is therefore, denied.

The following is provided for the benefit of the Applicant. 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. She was properly discharged after numerous non-judicial punishments and a civilian conviction for driving under the influence. 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. E vidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the Applicant is drug free, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. The Applicant did not provide any of these documents. Relief denied.

She is reminded 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 present any evidence of post-service accomplishments at the personal appearance hearing. Legal representation at a personal appearance hearing is recommended, but not required.
Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A, effective 870615 - 890110), Article 3630600, SEPARATION OF ENLISTED MEMBERS 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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