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NAVY | DRB | 2002_Navy | ND02-00689
Original file (ND02-00689.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND02-00689

Applicant’s Request
The application for discharge review, received 020422, requested that the characterization of service on the discharge be changed to general/under honorable conditions or 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. In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area. The applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030116. 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. My discharge was inequitable because it was based on one isolated incident with no other minor incidents. I am requesting this change to better my life. I happily served in the U.S. Navy.

 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):
         Inactive: USNR (DEP)     861224 - 870211  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 870212               Date of Discharge: 880919

 Length of Service (years, months, days):

         Active: 01 07 08
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 25

 Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.90 (2)    Behavior: 1.90 (2)                OTA: 2.10

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

871117:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 2000, 871107 to 0630, 871108, violation of UCMJ Article 134: Unauthorized absence from unit (Liberty Risk Muster).
         Award: Forfeiture of $150.00 pay per month for 1 month, restriction for 20 days (suspended for 3 months), extra duty for 20 days. No indication of appeal in the record.

871117:  Retention Warning from [USS DWIGHT D. EISENHOWER (CVN-69)]: Advised of deficiency (Pattern of misconduct evidenced by violation of UCMJ, Article 86, 134), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880721:  NJP for violation of UCMJ, Article 86: Absent from appointed place of duty (7 Specifications); 1900 880417-0840 880418; 2340 880420-0427 880421; 0100-0330 880502; 0400-0815 880502; 0820-2000 880502; 0400-0445 880506; 0100-0410 880507, violation of UCMJ Article 91: Disobedience of a superior petty officer on or about 880702.
         Award: Forfeiture of $335.00 pay per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.

880722:  Commanding Officer, USS DWIGHT D. EISENHOWER (CVN-69), notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious military offense.
880722:  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.
880723:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious military offense. Commanding Officer’s comments (verbatim excerpt): [AR Johnson’s repeated violations of the UCMJ cannot be tolerated further. He has been counseled and warned repeatedly regarding the consequences of his misconduct…He is considered to have no potential for further productive military service…]

880801:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

880813:  NJP for violation of UCMJ, Article 91: (2 Specifications), Disobedience of a superior petty officer on or about 880813.
         Award: Forfeiture of $335.00 pay per month for 1 month, 3 days bread and water. No indication of appeal in the record.

 PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 880919 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 Board disagrees with the Applicant’s claim that his discharge was inequitable because it was based on one isolated incident. The Applicant’s service record is marred by award of non-judicial punishment on three occasions. The Applicant’s repeated misconduct, warranting separation for misconduct due to a pattern of misconduct and the commission of a serious offense, is clearly documented. 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.

The Board has no authority to upgrade a discharge for the sole purpose of “bettering his life” as requested by the Applicant. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. In the Applicant’s case the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge as proper and equitable. 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 and 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. 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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