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NAVY | DRB | 2002_Navy | ND02-00759
Original file (ND02-00759.rtf) Auto-classification: Denied


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

ex-ICFN, USN
Docket No. ND02-00759

Applicant’s Request
The application for discharge review, received 020506, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The Applicant requested a documentary record discharge review. The Applicant listed the American Legion as the representative on the DD Form 293.

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 family problems 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:
Applicant's DD Form 214
Appointment of Veterans Service Organization as claimant's representative dated April 17, 2002
Letter from Applicant dated April 17, 2002
Twenty-six pages from Applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     920514 - 920825  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 920826               Date of Discharge: 970808

 Length of Service (years, months, days):

         Active: 04 11 13
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 76

 Highest Rate: IC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.93 (3)    Behavior: 3.80 (3)                OTA: 4.00
 Performance: 5.00 (2)    Behavior: 3.80 (2)                OTA: 4.00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, AFSM, AFEM, SSDR, NATO, NMCAM, GCM

 Days of Unauthorized Absence: 117

 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 :

960125:  Retention Warning: Advised of deficiency (Alcohol related incident as identified by civilian charge of driving under the influence of alcohol on 19 November 1995.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970303   Applicant to unauthorized absence from USS ENTERPRISE (CVN 65).

970331   Applicant returned from unauthorized absence.

970403:  Applicant apprehended by Newport News Police for driving under the influence, second offense. Applicant sentence to 60 days in jail and fined $711.00.

 970603   Applicant surrendered onboard USS ENTERPRISE this date.

 970603:  Applicant transferred to Hampton City Jail charged with driving with a suspended license. Applicant fined $728.00 and ordered to serve 60 hours of community service.
970630:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 0600, 970303 until 0600, 970331 (28 days/surrendered), (2) Unauthorized absence from 1200, 970403 until 2000, 970603
(61 days/surrendered).
         Award: Forfeiture of $498 per month for 2 months, restriction and extra duty for 45 days, reduction to ICFN. No indication of appeal in the record.
970808:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

Discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 970808 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 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. The receipt of commendations and favorable performance evaluations during an Applicant’s enlistment, do not guarantee 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 the award of non-judicial punishment (NJP) on 2 occasions, as well as the appropriate discharge warning/counseling entry. 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 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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