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NAVY | DRB | 2002_Navy | ND02-00728
Original file (ND02-00728.rtf) Auto-classification: Denied


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

ex-MSSA, USN
Docket No. ND02-00728

Applicant’s Request
The application for discharge review, received 020425, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The Applicant listed American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 030319. After a thorough review of the testimony, records, supporting documents, facts and circumstances unique to this case, the 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. This former member 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:
Copy of DD Form 214
Reference Letter from Pastor First United Methodist ChurchCopy of Army Achievement Medal Certificate dated March 4, 2000
Copy of Army Achievement Medal Certificate dated August 30, 2000Copy of Memorandum for Record (Humanitarian Service Medal Award) dated March 11, 2001Copy of Memorandum for Record (Army Reserve Component Overseas Training Ribbon Award) dated March 11, 2001Copy of Security Officer/Law Enforcement Certificate of Completion from Cumberland County CollegeEmployment Recommendation Letter from Canterbury Career School, INCCopy of Certificate of Award (assisting a police officer) dated May 21, 1991Letter from ApplicantRequest for Waiver dated May 6, 1998Waiver Approval dated May 6, 1998Police Record Letter dated March 2, 2002Letter of Recommendation from New Jersey Army National Guard dated March 2, 2002Letter of Recommendation from New Jersey Army National Guard dated March 8, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     850720 - 860623  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 860624               Date of Discharge: 880504

 Length of Service (years, months, days):

         Active: 01 11 01
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 45

 Highest Rate: MSSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.33 (3)    Behavior: 3.00 (3)                OTA: 3.46

 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 :

871013:  Retention Warning from USS GUADALCANAL (LPH-7) Advised of deficiency (Poor performance, bad attitude, disobeying a lawful order from his superior, numerous unauthorized absence, lack of responsibility), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

871106:  NJP for violation of UCMJ, Article 91: Was onboard USS GUADALCANAL (LPH-7), on or about 871023, disrespectful in language and deportment to MS1 D_, by shouting at him.
         Award: Restriction for 30 days (15 days suspended), reduction to E-2 (suspended for 6 months). No indication of appeal in the record.

880225:  Punishment suspended at CO's NJP of 871106, reduction in rate to E-2 and restriction for 15 days vacate this date due to continued misconduct.

880225:  NJP for violation of UCMJ, Article 91: Disrespectful in language towards a petty officer.
         Award: Correctional Custody for 30 days, forfeiture of $100.00 pay per month for 2 months. No indication of appeal in the record.
880506:  NJP for violation of UCMJ, Article 86: UA from appointed place of duty.
Award: Restriction and extra duty for 20 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.
880506:  USS GUADALCANAL (LPH-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 three non-judicial punishments in service record during your enlistment.
880509:  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.
880512:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Commanding Officer’s comments (verbatim): [MSSA R_ (Applicant) is an administrative burden and is very disrespectful to senior petty officers. He has been counseled in writing numerous times concerning his disrespect for authority. He has made no attempt to correct his behavior…His cavalier attitude toward the Navy’s rules and regulations that he does not feel compelled to obey have resulted in this recommendation for a discharge under other than honorable conditions. I most strongly recommend this discharge be approved.]

880518:  CNMPC 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 880524 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: 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. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected from a Sailor. It must be noted that most Sailors and Marines serve honorably and well and therefore earn honorable discharges. In fairness to those Sailors and Marines, commanders and separation authorities are tasked to ensure that undeserving Sailors and Marines receive no higher characterization than is due. 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. The regulation does not clearly define this authority, but in fairness to those who have served honorably, the Board is very judicious in its application of this authority. After a complete review of the record, including the evidence submitted by the Applicant, the Board acknowledges the positive direction the Applicant’s life has taken since his discharge, and encourages the Applicant to continue to serve honorably in the New Jersey Army National Guard. However, the Board determined that the Applicant’s evidence of post service accomplishments was insufficient to mitigate the pattern of misconduct for which he was discharged from the naval service. An upgrade to reflect honorable service would be inappropriate. Relief denied.


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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