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NAVY | DRB | 2002_Navy | ND02-00213
Original file (ND02-00213.rtf) Auto-classification: Denied


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

ex-AMSAA, USN
Docket No. ND02-00213

Applicant’s Request
The application for discharge review, received 020108, 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 020912. 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 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. To Whom It May Concern,

I am submitting this application in to you because I feel as though I was unjustly discharged from the Navy. Although I am aware of the mistakes I have made and I regret my negative actions. Since I was released from service my conduct has been exemplary. I have held down a full time job and also went to school. I have recently graduated from Texas A&M University Recruit Fire Training School and I am now a certified Level II firefighter. The only thing that may hold me back from my goal to become a firefighter is the blemish I have on my naval discharge. I am very proud of my time I spent in the Navy and I wish to have my discharge reflect that. Thank you for your time.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214
Citation dated June to December 1999
Evaluation Report and Counseling Record dated June 22, 2000
Letter from the Texas A&M University System dated November 9, 2001
Certificate of completion dated November 9, 2001
Certificate of completion dated October 8-11, 2001
Certificate of completion dated October 20-21, 2001
 Certificate of training dated October 19, 2001
Certificate of completion dated November 9, 2001
Letter from Applicant dated June 15, 2002
Evaluation Report and Counseling Record dated March 6, 2000
Certificate dated February 11, 2000
Evaluation Report and Counseling Record dated December 20, 2000

PART II – SUMMARY OF EVIDENCE

----------------------------------------------------------------------------------------------------------------
 Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     960426 – 961118  COG
         Active:  None
----------------------------------------------------------------------------------------------------------------
 Period of Service Under Review:

Date of Enlistment: 961119                Date of Discharge: 001229

 Length of Service (years, months, days):

         Active: 04 01 11
         Inactive: None

 Age at Entry : 21                           Years Contracted: 4 (8 months extension)

 Education Level: 12                        AFQT: Unknown

 Highest Rate: AMS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (5)    Behavior: 2.40 (5)                OTA: 3.07

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM (2), NER, SSDR (2)

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).


 Chronological Listing of Significant Service Events :

980602:  NJP for violation of UCMJ, Article 109: Destruction of property other than military in that smashed the windshield of a privately owned vehicle, violation of UCMJ, Article 134: Drunk and disorderly.
         Award: Forfeiture of $463 per month for 2 months, restriction for 30 days, reduction to AMSAR. Forfeiture suspended for 6 months contingent upon replacement of windshield. No indication of appeal in the record.
990905:  NJP for violation of Article 86: Unauthorized absence on 22Jul00.
         Award: Forfeiture of $55 per month for 1 month, restriction and extra duty for 30 days, reduction to AMSAN. Reduction suspended. No indication of appeal in the record.
000905:  Retention Warning: Advised of deficiency (Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

001211:  NJP for violation of UCMJ, Article 92: Failure to obey, violation of UCMJ, Article 117: Provoking speeches or gestures, violation of UCMJ, Article 108: Damage to government property, violation of UCMJ, Article 111: Drunk/reckless operation of a vehicle, violation of UCMJ, Article 95: Resisting arrest, violation of UCMJ, Article 128: Assault upon a person in the execution of law enforcement duties.
         Award: Forfeiture of $563 per month for 2 months, restriction and extra duty for 45 days, reduction to AMSAA. No indication of appeal.
001215:  Vacate suspended reduction to AMSAN awarded at CO's NJP dated 11 Dec 00 due to continued misconduct.

 001220:  Applicant notified of intended recommendation for discharge with a general (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.
001220:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights

001229:  DD Form 214: Applicant's discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

Only partial discharge package found in the record.
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 001229 with a 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 Applicant contends that he was unjustly discharged. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. The Applicant had nonjudicial punishment imposed upon him on three occasions (June 1998, September 1999 and December 2000). His offenses included drunk and disorderly, resisting arrest, damage to government property, unauthorized absence and assault on a law enforcement official. His discharge was proper and equitable. 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. The NDRB did consider the documents submitted by the Applicant. The matters submitted by the Applicant did not overcome the characterization of his discharge. Relief denied.

 The Applicant is reminded that the period of eligibility for a personal appearance hearing is 15 years from the date of discharge. The application package must be submitted to the NDRB prior to the expiration of the 15 year period. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is recommended but not required.



Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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 “ afls14.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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