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NAVY | DRB | 2002_Navy | ND02-00746
Original file (ND02-00746.rtf) Auto-classification: Denied


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

ex-MSSR, USN
Docket No. ND02-00746

Applicant’s Request
The application for discharge review, received 020430, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The Applicant listed the American Legion as the representative on the DD Form 293. In the acknowledgement letter to the Applicant, the Applicant was informed that the Naval Discharge Review Board (NDRB) 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: UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. (Equity Issue) This former member avers that family problems, the illness of his grand parents, contributed to and sufficiently mitigated his misconduct of record to warrant upgrade of his characterization of service.

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:
Letter to Applicant, dated March 26, 1993
Letter to Chief of Navy/Marine Corps Liaison, dated April 19, 1993 (2 pages)
Letter from Applicant’s grandparents, dated March 12, 1994 (2 pages)
Letter from S_ H_, dated October 12, 1992
Letter from Grandmother’s physician, dated October 16, 1992
Note from Centerville Clinics, Inc., undated
Letter from B_ F_, undated
Letter from Reverend B_ W_, undated
Letter from Grandfather’s physician, dated March 31, 1994
American Red Cross Message, dated August 16, 1994
Message Receipt notification, dated August 16, 1994
Applicant’s Statement for Separation Review, undated
Letter from grandmother’s physician, dated April 12, 1994
Letter from Applicant, undated
Character Reference from J_ P. A_, dated May 30, 2002
Character Reference from employer, undated
University of Toyota certificates of completion, 5 certificates

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890911 - 900903  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 900904               Date of Discharge: 940929

 Length of Service (years, months, days):

         Active: 04 00 21 Does not exclude lost time
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 24

 Highest Rate: MSSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.70 (2)    Behavior: 3.80 (2)                OTA: 3.80

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM

 Days of Unauthorized Absence: 167

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

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

 Chronological Listing of Significant Service Events :

890911   Applicant enlisted in Navy Delayed Entry Program.

900904   Applicant commences active duty at NTC San Diego, CA.

920907:  Applicant to unauthorized absence 0700, 920907.

 920909:  Applicant from unauthorized absence 1700, 920909
(2 days/surrendered).
930122:  Applicant to unauthorized absence 0700, 930122.

930123:  Applicant from unauthorized absence 0915, 930123
(1 day/surrendered).
930125:  Applicant to unauthorized absence 0700, 930125.

 930201:  Applicant from unauthorized absence 0700, 930201
(7 days/surrendered).
930315:  Applicant to unauthorized absence 0700, 930315.

930317:  Applicant from unauthorized absence 0341, 930317
(1 day/surrendered).
930615:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700, 930517 to 0730, 930518 (1 day/surrendered).
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 7 days. No indication of appeal in the record.
930615:  Retention Warning from USS DWIGHT D. EISENHOWER CVN 69: Advised of deficiency (Unauthorized absence from 930517 to 930518), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930907   Applicant to unauthorized absence 0700, 930907.

931007:  Applicant declared a deserter.

940209:  Applicant returned from unauthorized absence.
940317:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 0700, 930907 until 2228, 940209 (155 days/surrendered).
         Findings: to Charge I and specification thereunder, guilty.
         Sentence: Confinement for 15 days, forfeiture of $200 per month for 6 months, reduction to MSSR.
         CA 940726: Sentence approved and ordered executed.

940317:  Applicant to confinement.

940329:  Applicant from confinement.

940822:  NJP for violation of UCMJ, Article 134: Disorderly conduct by urinating in the parking lot of Norfolk Live Club, located on board Naval Station Norfolk.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 21 days. No indication of appeal in the record.
940823:  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 as evidenced by non-judicial punishments of 22 August 1994 and 15 June 1993, and special court martial of 17 March 1994, and misconduct due to commission of a serious offense as evidenced by special court martial of 17 March 1994 for violation of the Uniform Code of Military Justice, Article 86, unauthorized absence from 7 September 1993 to 9 February 1994.
940823:  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 and to submit a statement.
940831:  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 offense.

940922:  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 940929 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, D and E).

Issue 1: The Board disagrees with the Applicant’s assertion that his personal family problems sufficiently mitigated his misconduct of record. The Applicant ’ s conduct, which forms the primary basis for determining the character of service, falls far short of that required for an honorable discharge. 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 of a sailor. The Applicant’s service record is marred by multiple periods of unauthorized absences, award of non-judicial punishment (NJP) on 2 occasions, and a Special Court Martial as well as the appropriate discharge warning/counseling entries. The Applicant ’ s service is equitably characterized as being performed as under other than honorable conditions, due to his own repeated pattern of misconduct. The Applicant could have received a punitive discharge for violation of the Uniform Code of Military Justice, Article 86, for his unauthorized absence in excess of 30 days. 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 9, effective
22 Jul 94 until 02 Oct 96), 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.

E. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article [e.g., 86, for unauthorized absence for a period in excess of 30 days] if adjudged at a Special or General Court-Martial.

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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