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NAVY | DRB | 2002_Navy | ND02-00253
Original file (ND02-00253.rtf) Auto-classification: Denied


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

ex-GSMFA, USN
Docket No. ND02-00253

Applicant’s Request
The application for discharge review, received 020114, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 020731. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no inequity but did discern an impropriety in the applicant’s discharge. The Board’s vote was unanimous that the character and reason for the discharge shall change. The discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/SECRETARIAL AUTHORITY, authority: NAVMILPERSMAN, 1910-164 (formally 3630900), and separation code "JFF".

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. My discharge was inequitable because it was based on untrue facts and statements. The charges that were brought against me were false. I say they were false because there was no proof to the charges. Also since my discharge in March of 2000 I have held a lead position and a maintenance specialist position. I have been very active in the community. I haven't had any run-ins with the law. There will also be an enclosed letter of recommendation from the Mayor of Camden, Arkansas.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter of recommendation dated October 23, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     970129 - 970430  COG

 Period of Service Under Review :
Date of Enlistment: 970501               Date of Discharge: 000315

 Length of Service (years, months, days):

         Active: 02 10 15
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 34

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.60 (5)    Behavior: 2.40 (5)                OTA: 2.66

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, AFEM, NUC

 Days of Unauthorized Absence: Not documented

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

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

 Chronological Listing of Significant Service Events :

990401:  NJP for violation of UCMJ, Article 123A (2 specifications). Making, drawing, or uttering check, draft, or order without sufficient funds on 25 Mar 99.
         Award: Restriction for 60 days. No indication of appeal in the record. [Extracted from Commanding Officer's letter dated March 10, 2000]
000302:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 107: False official statement, violation of UCMJ, Article 115: Malingering, violation of UCMJ, Article 121: Misappropriation of government property, violation of UCMJ, Article 123: Forgery, violation of UCMJ, Article 134 (2 specs): Check, worthless, making and uttering by failing to maintain funds.
         Award: Forfeiture of $563.70 per month for 2 months, restriction and extra duty for 45 days, reduction to FA. No indication of appeal in the record.
000306:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. [No record of retention warning]
000306:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
000310:  Commanding Officer, Assault Craft Unit FIVE directed discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Commanding Officer’s comments (verbatim): FA (applicant) has been found guilty at NJP of UCMJ articles listed above. His record of performance during his three years of active duty and his failure to maintain the standards required by the UCMJ have proven him unfit for further naval service. FA (applicant) has expressed his desire to separate and has verbally stated he can no longer serve honorably on active duty. I am separating him as of 15 March 2000, with a characterization of service of Other Than Honorable Conditions.

000329:  Applicant did not qualify for discharge as processed per COMNAVPERSCOM message dated 29Mar00. Discharge should have been reviewed by GCMCA as separation authority.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000315 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 equitable but not proper (C and D).

Issue 1: The applicant alleges his discharge was inequitable because it was based on untrue facts and statements. During his enlistment, the applicant was awarded non-judicial punishment (NJP). On two separate occasions he was found guilty of all charges and did not appeal either NJP. The record was devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief not warranted on this issue.

However, upon further review of the documentation, the Board discerned an impropriety in the applicant’s discharge. The applicant was not given the appropriate retention warning required when processing a service member for misconduct due to a pattern of misconduct. In addition, the applicant’s discharge should have been reviewed by the GCMCA as the proper separation authority prior to discharge. It is the unanimous opinion of the Board that the applicant’s discharge is improper and shall be changed. Relief is therefore granted on the basis of the impropriety of the discharge.

 Issue 2: 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, employment record, documentation of community service, and certification of non-involvement with civil authorities, 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. Therefore, relief not warranted on the basis of post service conduct.


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 “ 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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