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NAVY | DRB | 2002_Navy | ND02-00378
Original file (ND02-00378.rtf) Auto-classification: Denied


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

ex-ADAR, USN
Docket No. ND02-00378

Applicant’s Request
The application for discharge review, received 020214, requested that the characterization of service on the discharge be changed to honorable. 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 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: GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I feel that my discharge was inequitable because of my lack of knowledge of military inspections. If I had known better I would had left my kitchen knife (which I used in place of a screwdriver for fixing my car radio) at home in Memphis. Prior to this incident my military record was clean. Each day I regret how a simple misunderstanding put an end to what I felt was going to be a promising Naval career. By not having an honorable discharge If feel that my character has been flawed when it comes to filling an application seeking employment. An upgrade discharge will also allow me to become eligible to obtain VA benefits to further peruse higher education to better myself in the competitive job market.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     930430 - 930912  COG

 Period of Service Under Review :
Date of Enlistment: 930913               Date of Discharge: 960410

 Length of Service (years, months, days):

         Active: 02 06 28
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 69

 Highest Rate: ADAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (3)    Behavior: 3.47 (3)                OTA: 3.33

 Military Decorations: None

 Unit/Campaign/Service Awards: NUC, NER, NDSM, SASM with Bronze Star

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

951017:  NJP for violation of UCMJ, Article 92: Failure to obey lawful regulation, violation of UCMJ, Article 86 (2 specs): Unauthorized absence.
         Award: Restriction for 30 days, extra duty for 15 days. No indication of appeal in the record.
951017:  Retention Warning from [Helicopter Antisubmarine Squadron SEVEN]: Advised of deficiency (Failure to obey lawful regulation on 30 August resulting in nonjudicial punishment on 17 October 1995. Unauthorized absence on 19 September and 30 September resulting in nonjudicial punishment on 17 October 1995.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

951215:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 1500, 22 Nov 95 to 0800, 23 Nov 95, violation of UCMJ, Article 92 (2 specs): Violate a lawful general order.
         Award: Forfeiture of $478 per month for 2 months, reduction to ADAA. No indication of appeal in the record.
951218:  Retention Warning from (not listed): Advised of deficiency (Unauthorized absence on 22 November 1995 resulting in nonjudicial punishment on 15 December 1995. Failure to obey lawful general order on 30 November and 4 December 1995.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 960209:  NJP for violation of UCMJ, Article 92: Violated a lawful general regulation by wrongfully driving on base after privileges have been suspended.
         Award: Red to ADAR. No indication of appeal in the record.
960213:  Helicopter Antisubmarine Squadron SEVEN notified Aapplicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by CO's NJP on 17 October 1995 for violation of the UCMJ Article 92; CO's NJP on 15 December 1995 for violation of the UCMJ Articles 86 and 92; CO's NJP on 9 February 1996 for violation of the UCMJ Article 92.
960213:  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.
960226:  Commanding Officer, Helicopter Antisubmarine Squadron SEVEN recommended discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

960326:  BUPERS directed the Applicant's discharge general (under 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 960410 general (under 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 Applicant stated his discharge was inequitable because of his lack of knowledge of military inspections. 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. General, under honorable conditions, most clearly describes the Applicant’s character of service. Relief not warranted.

Issue 2: The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested by the Applicant. In addition, the Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

The following is provided for the Applicant’s information: 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, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.

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 15560C, Change 9, effective
22 Jul 94 until 02 Oct 96), 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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