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NAVY | DRB | 2002_Navy | ND02-00272
Original file (ND02-00272.rtf) Auto-classification: Denied


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

ex-BMSA, USN
Docket No. ND02-00272

Applicant’s Request
The application for discharge review, received 020123, requested that the characterization of service on the discharge be changed to honorable or 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. I think this discharged was inequitable because it was based on only my 2 nd isolated incident in 5 1/2 years of service with no other adverse action.

 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: None
         Inactive: USNR (DEP)     890520 - 890720  COG

 Period of Service Under Review :
Date of Enlistment: 890721               Date of Discharge: 930202

 Length of Service (years, months, days):

         Active: 03 06 12
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 27

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.15 (4)    Behavior: 2.80 (3)                OTA: 3.35

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM (Operation Desert Storm), MUC

 Days of Unauthorized Absence: 14

 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 :

900404:  NJP for violation of UCMJ, Article 86: Absence from unit on 3Mar90, violation of UCMJ, Article 92: Failure to obey lawful order on 3Mar90.
         Award: Correctional custody for 20 days. No indication of appeal in the record.
910222:  Special Court Martial
         Charge I: violation of the UCMJ, Article 121:
         Specification: Larceny.
         Charge II: violation of the UCMJ, Article 128:
         Specification: Assault consummated by a battery.
         Charge III: violation of the UCMJ, Article 134:
         Specification: Disorderly conduct, received stolen property.
         Findings: to Charge I, II, and III and specifications thereunder, guilty.
         Sentence: Confinement for 3 months, forfeiture of $500 per month for 3 months, reduction to BMSR. [Extracted from CO's message dated 20Jan93.]
         Sentence approved and ordered executed except for bad conduct discharge.
        
910712:  Retention Warning from USS WICHITA (AOR-1): Advised of deficiency (Continued misconduct and frequent involvement with military authority.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930107:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700, 23Dec92 until 1219, 6Jan93 (14 days/surrendered).
         Award: Forfeiture of $500.55 per month for 2 months, restriction and extra duty for 45 days, reduction to BMSA. No indication of appeal in the record.
930107:  USS WICHITA (AOR-1) 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 NJP's of 04Apr90, SPCM Conviction of 22Feb91 and NJP of 07Jan93; and commission of a serious offense as evidenced by larceny, assault consummated by a battery and receiving stolen property (SPCM of 22Feb91).
930109:  Applicant advised of 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.
930120:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.

930127:  BUPERS 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 930202 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 Board considered the equity and propriety within the specific circumstances of the Applicant’s case. The Board discerned that the Applicant’s discharge characterization is both proper and equitable. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service as honorable. A characterization of service of (general) under honorable conditions is warranted when significant negative aspects of a service member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor. The Applicant’s service record is marred by award of non-judicial punishment (NJP) on two occasions and a Special Court Martial conviction . 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. An upgrade would be inappropriate. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country. 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 15560C, effective 15 Aug 91 until
04 Mar 93), 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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