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NAVY | DRB | 2002_Navy | ND02-00582
Original file (ND02-00582.rtf) Auto-classification: Denied


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

ex-ENFR, USN
Docket No. ND02-00582

Applicant’s Request
The application for discharge review, received 020402, 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 030107. 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, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I believe that I should have my discharge upgraded because I feel that it was ujust.

2. I was young and started drinking and had gotten myself in trouble. Then I realized that I had a drinking problem and talked to my X.O. about receiving help. The X.O. got angry and started cussing, and told me if I wanted help I would get it as a civilian.

3. I enjoyed working at my command in the Navy. If I would received help, instead of being discharged I would have reenlisted.

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: USN                        None
         Inactive: USNR (DEP)     910921 - 920907  COG

 Period of Service Under Review :
Date of Enlistment: 920908               Date of Discharge: 940504

 Length of Service (years, months, days):

         Active: 01 07 27
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 43

 Highest Rate: ENFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (1)    Behavior: 2.00 (1)                OTA: 3.20

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

940113:  NJP for violation of UCMJ, Article 121: In that ENFA J_W_.H_, COMPETENT AFMD 6, Naval Submarine Base Pearl Harbor, Hawaii, did at the Mini Mart, from August to October 1993 conspire with several employees of the Navy Exchange to commit an offense under the UCMJ, to wit: Wrongfully purchasing merchandise from the Navy Exchange System at a discount price; violation of UCMJ Article 92: (2 Specifications), Spec 1: In that ENFA J_W_.H_, COMPETENT AFMD 6, Naval Submarine Base Pearl Harbor, Hawaii, on active duty, did from August to October 1993, violate a lawful order, to wit: COMNAVBASEPEARLINST 1746.9B by wrongfully consuming alcohol under age 21, Spec 2: In that ENFA J_W_.H_, COMPETENT AFMD 6, Naval Submarine Base Pearl Harbor, Hawaii, on active duty, did from August to October 1993, violate a lawful order, to wit: Failing to report violations of the UCMJ; violation of UCMJ Article 121: In that ENFA J_W_.H_, COMPETENT AFMD 6, Naval Submarine Base Pearl Harbor, Hawaii, did at the Mini Mart, from August to October 1993, steal merchandise, military property, of a value exceeding $350, the property of the Navy Exchange; violation of UCMJ Article 134: In that ENFA J_W_.H_, COMPETENT AFMD 6, Naval Submarine Base Pearl Harbor, Hawaii, did at the Mini Mart, from August to October 1993, with the intent to defraud, falsely pretend to purchase merchandise which had been wrongfully discounted, then knowing that the pretenses were false, and by means thereof did wrongfully obtain from Mini Mart Employees, of a value exceeding $350; to wit: Merchandise by not paying the entire cost, of a value of $350, the property of the U.S. Government, which property, as he, the said accused then knew had been stolen.
         Award: Forfeiture of $150.00 pay per month for 2 months, extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

940118:  NJP for violation of UCMJ, Article 92: In that ENFA J_W_.H_, COMPETENT AFMD 6, Naval Submarine Base Pearl Harbor, Hawaii, on active duty, on or about 940115, violate a lawful order, to wit: COMNAVBASEPEARLINST 1746.9B by wrongfully consuming alcohol under age 21, violation of UCMJ Article 111 (2 Specifications), Spec 1: In that ENFA J_W_.H_, COMPETENT AFMD 6, Naval Submarine Base Pearl Harbor, Hawaii, on or about 1750, 940115, on Pier S-20, SUBASE, Pearl Harbor, operate a vehicle, to wit: a passenger car in a reckless manner by driving to fast for conditions, Spec 2: In that ENFA J_W_.H_, COMPETENT AFMD 6, Naval Submarine Base Pearl Harbor, Hawaii, on or about 1750, 940115, on Naval Submarine Base, Pearl Harbor, operate a vehicle, to wit: a passenger car while drunk, violation of UCMJ Article 112: In that ENFA J_W_.H_, COMPETENT AFMD 6, Naval Submarine Base Pearl Harbor, was, onboard COMPETENT AFDM-6, on or about 1750, 940115, found drunk while on duty as an Extra Duty Person.
         Award: Forfeiture of $300.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.

940126:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by violation of UCMJ Articles: 81, 92 (3 Specifications), 111 (2 Specifications), 112, 121, 134 (2 Specifications) and misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in current enlistment.
940128:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to submit statements on own behalf either verbally or in writing and the right to obtain copies of the documents used to support the basis for the separation, the right to request an Administrative Board and the right to representation at the Administrative Board by qualified counsel, the right to a minimum of 2 working days to respond to the Notice of Notification Procedure Proposed Action (Must be 30 days if member is in confinement or a reservist not on active duty). Election of this right requires that member date and sign this document (2 working days)/(30days) later than the receipt date of the letter of notification. If signature is dated earlier than the above stated time, this right considered to be waived. Applicant objected to separation.
940218:  Applicant advised of his rights and having consulted 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 and if applicable, to request transfer to the Fleet Reserve/Retirement List understanding that a reduction to the next inferior pay grade prior to transfer may be directed if being processed for misconduct, security, or homosexuality. The right to a minimum of 2 working days to respond to the Notice of Notification Procedure Proposed Action (Must be 30 days if member is in confinement or a reservist not on active duty). Election of this right requires that member date and sign this document (2 working days)/(30days) later than the receipt date of the letter of notification. If signature is dated earlier than the above stated time, this right considered to be waived.

940301:  Medical Officer's evaluation indicates Applicant was diagnosed as not alcohol dependent. Recommended for Level II Treatment.
940315:  Commanding Officer recommended discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by violation of UCMJ Articles: 81, 92 (3 Specifications), 111 (2 Specifications), 112, 121, 134 (2 Specifications) and misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in current enlistment. Commanding Officer’s comments (verbatim): [ENFR H_ (Applicant) does not object to this administrative separation action as reflected in enclosures (2) and (5). It is recommended that ENFR H_ (Applicant) receive a General discharge. ENFR H_ (Applicant) has displayed a blatant disregard for military rules and regulations. His actions were detrimental to good order and discipline of this command. The seriousness of the offenses and the consequences of his acts warrant a General discharge. Recommend immediate separation.]

940401   BUPERS held administrative action in abeyance. Member’s SOA indicates that member waived his administrative board in exchange for a general discharge. Per MPM 3610100.5 conditional waivers are not authorized.

940404   Applicant again advised of his rights and having consulted 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 and if applicable, to request transfer to the Fleet Reserve/Retirement List understanding that a reduction to the next inferior pay grade prior to transfer may be directed if being processed for misconduct, security, or homosexuality, and the right to a minimum of 2 working days to respond to the Notice of Notification Procedure Proposed Action (Must be 30 days if member is in confinement or a reservist not on active duty). Applicant did not object to this separation.

940420:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 940504 under other than honorable conditions for misconduct due to commission of a serious offense (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 was unjust. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls far short of that required for an honorable characterization of service. The Applicant’s summary of service clearly reflects his disregard for the requirements of military discipline and demonstrated he was unsuited for further service. Relief denied.

Issue 2: The Board found that the Applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his youth and drinking problem resulted in his having “gotten himself in trouble,” 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. Relief denied.

Issue 3: The Applicant’s discharge characterization accurately reflects his service to his country. When a sailor’s service has been honest and faithful, it is appropriate to characterize that service as honorable. A characterization of service of under honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a sailor. The Applicant’s service was marred by award of non-judicial punishment (NJP) for offenses tribal be court-martial on two occasions. It must be noted that most sailors serve honorably and well and therefore earn honorable discharges. In the case of the Applicant, an upgrade to honorable would be inappropriate. Relief denied.

 The following information is provided for the benefit of the Applicant. 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. 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.

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 5, effective
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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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