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NAVY | DRB | 2002_Navy | ND02-00329
Original file (ND02-00329.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND02-00329

Applicant’s Request
The application for discharge review, received 020129, 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 listed Department of Veterans Affairs as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021022. 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 inequitable because it was based on one isolated incident in one year, one month and eleven days of service with no other adverse action.

2. I had major family hardship at home which at the time my mother was ambulatory and disabled and I needed to attend to my mother medically and I needed to take care of my sister due to my mother disability.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character Reference Letter from C_ B. B_
Character Reference Letter from Associate Pastor H_ A. S_
Employment Reference Letter from Founding Dance Director C_ L. S_
Copy of DD Form 214
Cover Letter from State of Connecticut Dept of Veterans Affairs Office of Advocacy & Assistance
VA Claim

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890314 - 890514  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 890515               Date of Discharge: 900625

 Length of Service (years, months, days):

         Active: 01 01 11
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 50

 Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.40 (2)    Behavior: 2.70 (2)                OTA: 2.80

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 17

 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 :

890622:  DAAR indicates marijuana abuse, found not dependent, recommended for Level I Treatment.
891001:  Unauthorized absence from 0730 to 0810, 891001 (40 minutes).

891124:  Unauthorized absence from 891124-891127 (3 days/Returned).

 891219:  Retention Warning from [USS ABRAHAM LINCOLN (CVN-72)]: Advised of deficiency (Pattern of misconduct as evidenced by your being found guilty at CO's NJP on 891219 for violation of the UCMJ, Article 86), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

891219:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 1700, 891031 to 0530, 891101.
Award: Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 7 days. No indication of appeal in the record.
900112:  Unauthorized absence from 0700 to 1200, 900112 (5 hours/Returned).

900207:  NJP for violation of UCMJ, Article 128: Assault and battery on 900118; violation of UCMJ Article 134: Falsely make an ID Card application on 900122.
         Award: Forfeiture of $362.00 pay per month for 2 months ($362.00 pay per month for 1 month suspended for 6 months), restriction and extra duty for 30 days (14 days suspended for 3 months). No indication of appeal in the record.
900402:  Unauthorized absence from 0645, 900402 to 0645, 900403 (1 day/Returned)
 .
900501:  Medical officer's evaluation found Applicant not drug or alcohol dependent.
 Extracted from CO's message 17 Jun 90.
900523:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 900423 to 900506 (13 days/Returned).
Award: Forfeiture of $362.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
900523:  USS ABRAHAM LINCOLN (CVN-72) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct as evidenced by a pattern of misconduct and the commission of serious offense.
900523:  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.
900617:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and the commission of a serious offense. Commanding Officer’s comments (verbatim): [AR P_ (Applicant) has been a below average performer during his time on board LINCOLN and lacks the motivation and maturity to be a productive member of the Navy. He requires constant supervision to complete assigned tasks. His behavior is unacceptable and his presence in the work center is counterproductive AR P_ (Applicant) has gone UA with the explicit intention of being discharged from the Navy and has remained steadfast in his desire to be discharged despite numerous counseling attempts. Therefore, I most strongly recommend that AR P_ (Applicant) be discharged from the Naval Service with an other than honorable discharge due to misconduct as evidenced by a pattern of misconduct and the commission of serious offenses.]

900619:  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 900625 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).

Issues 1-2: The Applicant stated his discharge was inequitable because it was based on one isolated incident. The Applicant further contends that he was dealing with a major family hardship during his enlistment. The summary of service clearly documents the Applicant’s pattern of misconduct and willful disregard for the requirements of military discipline and demonstrated he was unfit for further service. The Applicant’s service record is marred by award of non-judicial punishment on three separate occasions. Furthermore, 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. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. Under other than honorable conditions most clearly describes the Applicant’s character of service. Relief not warranted.

Issue 3: 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. 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. Evidence of continuing educational pursuits, a positive employment record, documentation of community service, certification of non-involvement with civil authorities, credible evidence that the Applicant is drug free, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. After a complete review of the entire record, including the evidence submitted by the Applicant, the board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of discharge. 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 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 “ 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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