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NAVY | DRB | 2002_Navy | ND02-00264
Original file (ND02-00264.rtf) Auto-classification: Denied


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

ex-BMSN, USN
Docket No. ND02-00264

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 020815. 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. Dear Sir if you would review the facts. I was accused of not reporting to said duties as B. MOW aboard the USS NEW ORLEANS LPH-1. I admit that at the time I was late for my assigned duties, However I had another BM under instructions. I was award an O.T.H. discharge because of my actions. I feel this was unjust due to the fact there was an O.O.D. and duty BM on duty whom allow said BM under instructions to assume the duties. The B.M. under instruction should not have been allowed to relieve the duty B.M. without me as his qualified intructor. I was discharged with an O.T.H. I feel very unjustly. Thank you Respectfully submitted

 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: USN                        810117 - 850807  HON
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 850808               Date of Discharge: 900614

 Length of Service (years, months, days):

         Active: 04 10 07
         Inactive: None

 Age at Entry: 30                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 42

 Highest Rate: BM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.35 (4)    Behavior: 3.30 (4)                OTA: 3.45

 Military Decorations: None

 Unit/Campaign/Service Awards: NEM, 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 :

860926:  Special Court Martial
         Charge I: violation of the UCMJ, Article 107:
         Specification: Sign a false official record with intent to deceive on 18Jul96.
         Charge II: violation of the UCMJ, Article 131:
         Specification: Perjury on 24Mar86.
         Findings: to Charge I and II and specification thereunder, guilty.
         Sentence: CHL for 6 months, forfeiture of $426 per month for 6 months, reduction to BMSR.
         CA 861223: Sentence approved and ordered executed.

860926:  Applicant to confinement.

870309:  Applicant released from confinement and restored to full duty status.

891019:  NJP for violation of UCMJ, Article 86: Failed to go to appointed place of duty on 2015, 9Oct89 to 0515, 10Oct89.
         Award: Restriction and extra duty for 10 days, reduction to BMSN. Reduction suspended for 3 months. No indication of appeal in the record.
891120:  Retention Warning from USS NEW ORLEANS: Advised of deficiency, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900605:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Failure to go to appointed place of duty on 1745, 20Apr90, (2) Abandoning watch on 21Apr90.
         Award: Restriction and extra duty for 20 days, reduction to BMSN. No indication of appeal in the record.
900605:  USS NEW ORLEANS 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. [Extracted from CO's message dated 6Jun90.]
900606:  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. [Extracted from CO's message dated 6Jun90.]
900606:  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.

900611:  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 900614 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: Applicant claims his discharge is “unjust,” citing one event where he was late for his assigned duties, as the reason for discharge. In reality, a Special Court Martial, convened in 1986, mars the Applicant’s service record in addition; he was awarded non-judicial punishment (NJP) in 1989 and again in 1990. The Applicant was processed for misconduct due to a pattern of misconduct . He was issued a Retention Warning and counseling as well as a Discharge Warning prior to his second NJP. The Board discerned no evidence in the official record that there was any impropriety or inequity in the Applicant’s discharge. Relief not warranted.

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. Relief not warranted.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. 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, Change 8 effective 21 Aug 89 until 14 Aug 91), 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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