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NAVY | DRB | 2002_Navy | ND02-00222
Original file (ND02-00222.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND02-00222

Applicant’s Request
The application for discharge review, received 020109, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized. 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 he 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 did not respond.

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. My discharge was premature because it was based on incidents related to immaturity.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of applicant's employment history
Copy of applicant's DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 860208               Date of Discharge: 880607

 Length of Service (years, months, days):

         Active: 01 09 19
         Inactive: 00 06 10

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 26

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.07 (3)    Behavior: 2.93 (3)                OTA: 3.07

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

 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 :

870813:  NJP for violation of UCMJ, Article 92: Disrespect toward a superior petty officer on 22Jul87.
         Award: Restriction and extra duty for 19 days. No indication of appeal in the record.
870813:  Retention Warning from USS PELEIU (LHA 5): Advised of deficiency (Violation of Article 92), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

871002:  NJP for violation of UCMJ, Article 117: Provoking speeches and gestures on 25Sep87, violation of UCMJ, Article 134: Communicating a threat on 25Sep87.
         Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 35 days, reduction to SR. No indication of appeal in the record.
871121:  NJP for violation of UCMJ, Article 116: Breach of peace on 0640, 21Nov87.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 10 days. No indication of appeal in the record.
871209:  Applicant to unauthorized absence 0700-0815, 9Dec87 (1 hour and 15 minutes/surrendered).
880503:  NJP for violation of UCMJ, Article 128: Assault upon a crewmember on 2130, 5Apr88.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
880505:  USS PELEIU (LHA 5) 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.
880505:  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.
880514:  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.

880519:  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 880607 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. 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 four occasions and an adverse counseling entry on another occasion. 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 the naval service, and falls short of that required for an honorable characterization of service. While he may feel that immaturity was a factor that contributed to his actions, 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. An upgrade 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. The applicant 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. Legal representation at a personal appearance hearing is highly 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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