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NAVY | DRB | 2002_Navy | ND02-00495
Original file (ND02-00495.rtf) Auto-classification: Denied


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

ex-YNSR, USN
Docket No. ND02-00495

Applicant’s Request
The application for discharge review, received 020305, 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 021115. 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

Prior to the documentary discharge review, the Applicant introduced no issues as block 8 on the DD Form 293 is blank.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character reference dated August 17, 2001 (2 copies)
Character reference dated August 12, 2001 (2 copies)
Character reference dated July 1, 2001
Letter from Applicant dated October 16, 2001
Copy of Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     840730 - 850710  COG

 Period of Service Under Review :
Date of Enlistment: 850711               Date of Discharge: 880518

 Length of Service (years, months, days):

         Active: 02 10 08
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 42/46

 Highest Rate: YNSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.60 (3)    Behavior: 2.13 (3)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: 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 :

870303:  NJP for violation of UCMJ, Article 134: False pretense.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 30 days. Forfeiture for 2 months suspended for 2 months. No indication of appeal in the record.
870303:  Retention Warning from USS NEW ORLEANS (LPH-11): Advised of deficiency (False pretenses), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880211:  NJP for violation of UCMJ, Article 86: Absent from appointed place of duty on 6 Feb 88.
         Award: Forfeiture of $50 per month for 1 month, restriction and extra duty for 20 days, reduction to YNSA. Reduction suspended for 4 months. No indication of appeal in the record.
880211:  Retention Warning from USS NEW ORLEANS (LPH-11): Advised of deficiency (Absent from appointed place of duty on 6 Feb 88.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880223:  Vacate suspended reduction to YNSA awarded at CO's NJP dated 880211 due to continued misconduct.
880224:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Absent from appointed place of duty, to wit: restricted men's muster on 14 Feb 88.
         Charge II: violation of the UCMJ, Article 91:
         Specification: Disrespectful in language towards a superior petty officer on 21 Feb 88.
         Charge III: violation of the UCMJ, Article 117:
         Specification: Wrongfully use provoking words toward a superior petty officer on 12 Feb 88.
         Finding: to Charge I, II and III and the specification thereunder, guilty.
         Sentence: Forfeiture of $446.00 per month for 1 months, bread and water for 3 days, CHL for 24 days, reduced to YNSR.
         CA action 880301: Sentence approved and ordered executed.

880310:  USS NEW ORLEANS (LPH 11) 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 three punishments under the UCMJ within the current enlistment and misconduct due to a serious offense as evidenced by violation UCMJ articles 91 disrespectful in language towards a superior petty officer.
880311:  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.
880321:  Applicant released from confinement.

880322:  Commanding Officer, USS NEW ORLEANS (LPH 11) recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense. Commanding Officer ’ s comments (verbatim): [Wants to write his own rules, refuses to conform. Efforts to modify behavior elicit belligerent and argumentative behavior. He rates an OTH … ]

880511:  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 880518 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).

The Applicant presented no issues, however, he did request an upgrade of his discharge to general (under honorable conditions.) The Applicant ’ s service record is marred by award of non-judicial punishment (NJP) on two occasions and a Summary Court-Martial on another occasion. The Applicant was processed for separation by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense. The Applicant ’ s misconduct is clearly documented in the service record. The separation authority determined that a pattern of misconduct most clearly described the reason for discharge and directed the discharge be under other than honorable conditions. The discharge was proper and equitable. Relief denied.

 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 be provided to receive consideration for clemency, based on post-service conduct. The evidence submitted by the Applicant does not mitigate his conduct while on active duty. An upgrade based on post-service conduct is not warranted. 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, effective 870615 - 890110), Article 3630600, SEPARATION OF ENLISTED MEMBERS 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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