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NAVY | DRB | 2002_Navy | ND02-00590
Original file (ND02-00590.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND02-00590

Applicant’s Request
The application for discharge review, received 020325, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized. 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 - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I believe that a General discharge would have been given if the information on the Notice of Administrative Board Proposed action had been accurate. I have highlighted a section of the form indicating I was convicted of a civil D.U.I. which was incorrect. At no time in my life have I been arrested for, let alone convicted of a D.U.I.

I am seeking an upgrade to both my discharge and reenlistment codes so that reenlistment in one of the armed services may become a viable option in the future.

I feel that nine years of maturity have better prepared me to serve my country

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION." None were found.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Two pages from Applicant's service record
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     920326 - 920719  COG

 Period of Service Under Review :
Date of Enlistment: 920720               Date of Discharge: 930211

 Length of Service (years, months, days):

         Active: 00 06 22
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 84

 Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (1)    Behavior: NOB             OTA: 2.80

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 13

 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 :

921102:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 1300, 15 Oct 92 to 0830, 18 Oct 92 (2 days/surrendered).
         Award: Forfeiture of $100 per month for 1 month, correctional custody for 7 days. No indication of appeal in the record.
921102:  Retention Warning from Commanding Officer, Naval Air Technical Training Center, Naval Air Station, Memphis, Millington, TN: Advised of deficiency (Unauthorized absence from 1300, 15 Oct 92 until 0830, 18 Oct 92.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

921130:  NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence from appointed place of duty on 4 Nov 92, (2) Unauthorized absence from appointed place of duty on 14 Nov 92, (3) Unauthorized absence from appointed place of duty on 16 Nov 92, violation of UCMJ, Article 92: Failure to obey a lawful order/regulation on 2 Nov 92 by wrongfully wearing civilian attire.
         Award: Forfeiture of $150 per month for 1 month, restriction for 14 days. No indication of appeal in the record.
921207:  Applicant declared a deserter.
930107:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 054, 7 Dec 92 to 1340, 18 Dec 92 (11 days), (2) Unauthorized absence from appointed place of duty on 22 Dec 92, violation of UCMJ, Article 134: Breaking restriction on 7 Dec 92.
         Award: Forfeiture of $407 per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.
930107:  Commanding Officer, Naval Air Technical Training Center, Millington, TN 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 all punishments under the UCMJ during your current enlistment and misconduct due to commission of a serious offense in violation of Article 92 of the UCMJ.
930107:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. The Applicant did not object to his separation.
930112:  Commanding Officer recommended discharge with an under honorable conditions (general) by reason of misconduct due to a pattern of misconduct , misconduct due to commission of a serious offense and misconduct due to civil conviction of DUI. Commanding Officer’s comments, (verbatim): Airman Recruit (AR) R_ (Applicant) has been counseled on numerous occasions concerning his military behavior. The counseling sessions have proven futile. In my opinion he has no potential for future active naval service; therefore, I recommend separation with a General Discharge by reason of misconduct. This member’s service record is maintained by PERSUPP DET NAS MEMPHIS TN 38054-5099 where the recommended discharge will be executed if approved by Chief of Naval Personnel.]

930202:  BUPERS 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 930211 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).

Issue 1: The Applicant was not discharged for misconduct due to a civil conviction for DUI. Although the Applicant’s Commanding Officer recommended separation for a pattern of misconduct, misconduct due to commission of a serious offense and misconduct due to civil conviction of DUI. The Applicant was properly and equitably processed for separation under Separation Code “HKA,” Misconduct - Pattern of Misconduct. A pattern of misconduct is defined in part as discreditable involvement with civil and naval authorities as evidenced by three or more punishments under the UCMJ within the current enlistment, the latest offense and counseling to have occurred while assigned to the parent command. The Applicant’s service record is marred by award of non-judicial punishment (NJP) on three occasions, to include the appropriate retention warning. The Applicant’s summary of service clearly reflects the Applicant ’ s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. 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 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. 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 relief, based on post-service conduct. The Applicant did not provide any supporting documentation of post-service accomplishments. After a complete review of the record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that his claim that nine years of maturity has better prepared him to serve his country 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, effective 15 Aug 91 until
04 Mar 93), 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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