Search Decisions

Decision Text

NAVY | DRB | 2002_Navy | ND02-00556
Original file (ND02-00556.rtf) Auto-classification: Denied


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

ex-ETSN, USN
Docket No. ND02-00556

Applicant’s Request
The application for discharge review, received 020318, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant listed a civilian counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021217. 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. Characterization of discharge as general did not fit the circumstances of invol sep. several months after last offense.

2. Post service accomplishments, especially having received honorable discharge from the National Guard justify upgrading discharge and RE code.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Presentation from Applicant's attorney
Thirty pages from Applicant's service record
Personal statement from Applicant
Post service accomplishment statement
Recommendation for award dated July 27, 2000 (2)
Request/approval for waiver
Report of Separation and Record of Service effective December 19, 2000 (2)
Honorable Discharge Certificate from Army National Guard, December 19, 2000
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890421 - 890516  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 890517               Date of Discharge: 950315

 Length of Service (years, months, days):

         Active: 05 09 29
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 68

 Highest Rate: ET3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.10 (6)    Behavior: 3.10 (6)                OTA: 3.37

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR (2), NEM

 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 :

920327:  NJP for violation of UCMJ, Article 134: Indecent exposure, to wit: expose his buttocks to a Japanese boat on 920321.
         Award: Forfeiture of $200 per month for 1 month, reduction to ET3. Reduction suspended for 6 months. Indication of appeal in the record.
920327:  Retention Warning from [USS INDIANAPOLIS (SSN 697)]: Advised of deficiency (Poor judgment and irresponsible behavior and failure to think before doing.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930121:  NJP for violation of UCMJ, Article 121: Wrongful appropriation between February and December 1992.
         Award: Forfeiture of 1/2 months pay for 2 months, reduction to ETSN. Punishment suspended for 6 months. No indication of appeal in the record.
940207:  NJP for violation of UCMJ, Article 92: Dereliction of duty.
         Award: Forfeiture 1/2 pay per month for 1 month. Punishment suspended for 3 months. No indication of appeal in the record.
940407:  NJP for violation of UCMJ, Article 107: False official statement on 940325, violation of UCMJ, Article 121: Larceny of $125.00 on 930322.
         Award: Forfeiture of $467 per month for 2 months, restriction and extra duty for 45 days, reduction to ETSN. No indication of appeal in the record.
940407:  Vacate suspended forfeiture awarded at CO's NJP dated 940207 due to continued misconduct.

940407   Adverse Performance Evaluation Report for period 93JUL01 to 94APR07. Seaman Z_ (Applicant) is an intelligent and hardworking technician, but demonstrates extremely poor judgment. He has repeatedly demonstrated a lack of reliability and ethical morals … Seaman Z_ (Applicant) has failed to live up to his potential as an Electronics Technician and as a Petty Officer in the Navy. His performance resulted in the loss of trust from the wardroom and the crew. He is not recommended for advancement or retention.

941109:  Commander, Submarine Squadron 7 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 your CO's nonjudicial punishments on 12 January 1993, 7 February 1994, 22 March 1994 and 7 April 1994 and by misconduct due to commission of a serious offense as evidenced by your violation of the UCMJ Article 121 - wrongful appropriation, Article 121 - larceny, Article 107 - false official statement and Article 134 - indecent exposure.
941109:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
950111:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct and commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

950207:  Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct and commission of serious offense.

950227:  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 950315 with a discharge characterization of 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 Board disagrees with the Applicant ’ s contention that his discharge characterization does not fit the circumstances of his involuntary separation. The Applicant was discharged for misconduct, due to a pattern of misconduct after award of non-judicial punishment (NJP) on four occasions and numerous warning and counseling sessions. A service member may be processed for separation for a pattern of misconduct after t hree or more punishments under the UCMJ within the current enlistment. In addition, service members will be dual processed for misconduct due to commission of a serious offense where appropriate. When a sailor ‘ s service has been honest and faithful, it is appropriate to characterize that service as fully honorable. A characterization of service of under honorable conditions (general) 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. The Applicant ’ s conduct, which forms the primary basis for determining the character of his service, reflects his repeated disregard for the orders and directives, which regulate good order and discipline in the naval service, and falls short of that required for a fully honorable characterization of service. An upgrade to honorable would be inappropriate. Relief denied.

 Issue 2: Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is therefore denied.

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. There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge. The Applicant's misconduct is clearly documented. 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 fully honorable discharge. E vidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for an upgrade based on post-service conduct. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that his evidence of post-service accomplishments 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 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 “ 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      


Similar Decisions

  • NAVY | DRB | 2002_Navy | ND02-00480

    Original file (ND02-00480.rtf) Auto-classification: Denied

    In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Copy of applicant's DD Form 214 Letter from National Personnel Records Center dated December 24, 2001 Statement from applicant dated October 21, 2001 Character...

  • NAVY | DRB | 1999_Navy | ND99-00993

    Original file (ND99-00993.rtf) Auto-classification: Denied

    In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing and that this Board does not travel. is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. You may obtain a copy of DoD Directive 1332.28 by writing to: DA Military Review Boards Agency Management Information and...

  • NAVY | DRB | 2000_Navy | ND00-01082

    Original file (ND00-01082.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Copy of DD Form 214 PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: None Inactive: USNR (DEP) 940207 - 940315 COG Period of Service Under Review :Date of Enlistment: 940316 Date of Discharge: 961028 Length of Service (years, months, days):Active: 02 07...

  • NAVY | DRB | 2001_Navy | ND01-00629

    Original file (ND01-00629.rtf) Auto-classification: Denied

    The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing. No indication of appeal in the record.910409: NJP for violation of UCMJ, Article 86 (10 specs): Failed to go at time prescribed to appointed place of duty, restricted personnel muster, various times and dates between 1Mar91 to 10Mar91. Relief is therefore denied concerning this issue.The applicant’s representative submitted the following as issue 2: “(Equity Issue) This former...

  • NAVY | DRB | 2003_Navy | ND03-01116

    Original file (ND03-01116.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. Thank you A_ T_ (Applicant)” No indication of appeal in the record.911219: LOS ALAMOS (AFDB-7) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as result of you being found guilty of the following charges at CO’s nonjudicial punishment: 911213, violation of UCMJ, Article 86:...

  • NAVY | DRB | 2000_Navy | ND00-00510

    Original file (ND00-00510.rtf) Auto-classification: Denied

    No indication of appeal in the record.910901: [USS MOUNT WHITNEY (LCC-20)] notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct an misconduct due to the commission of a serious offense [EXTRACTED FROM CO'S MESSAGE]. PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The applicant was discharged on 911220 under other than honorable conditions for misconduct due to a...

  • NAVY | DRB | 1999_Navy | ND99-01128

    Original file (ND99-01128.rtf) Auto-classification: Denied

    Decision A documentary discharge review was conducted in Washington, D.C. on 000522. Service Record 4. No relief is warranted in this issue.In response to the applicant’s issue 4, the Board took into account the medical records, reports, and all documents submitted.

  • NAVY | DRB | 1999_Navy | ND99-00347

    Original file (ND99-00347.rtf) Auto-classification: Denied

    In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary record discharge review prior to any personal appearance hearing. No indication of appeal in the record.850617: USS MONTICELLO (LSD 35) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct- pattern – frequent involvement of a discreditable nature with civil or military authorities and...

  • NAVY | DRB | 2000_Navy | ND00-01048

    Original file (ND00-01048.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Three pages from applicant's service record PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: None Inactive: USNR (DEP) 880616 - 880706 COG Period of Service Under Review :Date of Enlistment: 880707 Date of Discharge: 910408 Length of Service (years, months, days):Active: 02 09 02 Inactive: None The applicant...

  • NAVY | DRB | 2001_Navy | ND01-00684

    Original file (ND01-00684.rtf) Auto-classification: Denied

    After reviewing the Former Service Member (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the contentions as set forth on the application by the appellant of an upgrade of his current General, Under Honorable Conditions discharge to that of Honorable. No indication of appeal in the record.910426: [USS ORION (AS-18)] notified applicant of intended recommendation...