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NAVY | DRB | 2002_Navy | ND02-00690
Original file (ND02-00690.rtf) Auto-classification: Denied


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

ex-AA, USNR
Docket No. ND02-00690

Applicant’s Request
The application for discharge review, received 020417, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance discharge review before a traveling panel closest to (left blank). The Applicant listed the American Legion as his representative on the DD Form 293. In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.
Decision

A documentary discharge review was conducted in Washington, D.C. on 030228. 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. (Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that the positive aspects of his overall service record supports a fully honorable discharge.

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant 's DD Form 214
Certificate of Attendance dated January 8, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 940204               Date of Discharge: 970313

 Length of Service (years, months, days):

         Active: 02 11 09
         Inactive: 00 02 00

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 12                        AFQT: 42

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (2)    Behavior: 2.80 (2)                OTA: 2.80
 Performance: 2.33 (3)    Behavior: 3.00 (3)                OTA: 2.17

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM, NUC, AFEM (2), SSDR (2)

 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 :

940405:  Applicant to active duty.

950707:  NJP for violation of UCMJ, Article 92: Altering an official pass, violation of UCMJ, Article 134: Failure to obey other lawful order.
         Award: Forfeiture of $200 per month for 1 month, restriction for 20 days, reduction to AR. Reduction suspended for 6 months. No indication of appeal in the record.
950718:  Retention Warning: Advised of deficiency (Violation UCMJ, Article 134: altering a base pass and Article 92: driving on base with suspended license.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960112:  Retention Warning: Advised of deficiency (Misconduct as evidenced by your loss of military property in the form of military identification cards through gross negligence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960411:  NJP for violation of UCMJ, Article 86 (3 specs): Specs 1 and 2): Failure to go to appointed place of duty, (Spec 3): Going from appointed place of duty.
         Award: Restriction and extra duty for 14 days. No indication of appeal in the record.
960411:  Retention Warning: Advised of deficiency (Misconduct as evidenced by your CO's NJP on 11 April 1996 for violations of the UCMJ, Article 86 (3 specifications) failure to go to appointed place of duty (X2) and going from appointed place of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970227:  NJP for violation of UCMJ, Article 86: Fail to go to appointed place of duty, violation of UCMJ, Article 121: Larceny in excess of $100.00.
         Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 30 days, reduction to AA. No indication of appeal in the record.
970313:  DD Form 214: Applicant discharged general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

Discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 970313 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 assertion that his overall service warrants a fully honorable characterization of service. The Applicant ’ s conduct, which forms the primary basis for determining the character of service, falls short of that required for an honorable discharge. A characterization of service of general (under honorable conditions) 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 service record is marred by award of non-judicial punishment (NJP) on three occasions as well as numerous discharge warning/counseling entries. The Applicant ’ s service is equitably characterized as being performed as general (under honorable conditions), due to his own repeated pattern of misconduct. 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: 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 was proper and equitable. Furthermore, t here 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 be provided to receive consideration for relief, based on post-service conduct. At this time the Applicant has not provided sufficient documentation of good character and conduct to mitigate his misconduct while on active duty. 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 14, effective 03 Oct 96 until 11 Dec 97), 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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