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NAVY | DRB | 2002_Navy | ND02-00830
Original file (ND02-00830.rtf) Auto-classification: Denied


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


ex-FR, USN
Docket No. ND02-00830

Applicant’s Request
The application for discharge review, received 020520, 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030214. 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 improper because my liking to perform my duties because of an incident that kept me disable for 6 month (I was badly hurt while on duty).
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     910929 - 910708  COG
         Active: USN                        None
Period of Service Under Review :
Date of Enlistment: 910709               Date of Discharge: 930121
Length of Service (years, months, days):

          Active: 01 06 13
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 31
Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.60 (1)    Behavior: 2.00 (1)                OTA: 2.00

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, SSDR

 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 :

920313:  NJP for violation of UCMJ, Article 92: (2 Specifications), willful disobedience of petty officer.
         Award: Restriction for 15 days. No indication of appeal in the record.
920314:  Retention Warning from [USS DUBUQUE (LPD-8)]: Advised of deficiency (Recent NJP), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
920709:  NJP for violation of UCMJ, Article 108: Damage to United States Military Property, violation of UCMJ Article 134: Drunk and disorderly.
         Award: Restriction for 7 days. No indication of appeal in the record.

 920709:  Retention Warning from [USS DUBUQUE (LPD-8)]: Advised of deficiency (Recent NJP), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920728:  NJP for violation of UCMJ, Article 113: Misbehavior of a sentinel on 920725.
         Award: Restriction for 30 days, reduction to E-2. No indication of appeal in the record.
921114:  NJP for violation of UCMJ, Article 86: Leaving place of duty.
Award: Restriction for 60 days, reduction to E-1. No indication of appeal in the record.
921116:  USS DUBUQUE (LPD-12) 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 CO's NJP on 920313 for violation of UCMJ, Article 91 (2), Willful disobedience of petty officer; CO's NJP on 920709 for violation of UCMJ, Article 108, Damage to United States Military Property and violation of the UCMJ, Article 134 Drunk and Disorderly; CO's NJP on 920728 for violation of UCMJ, Article 113, Misbehavior of a Sentinel; CO's NJP on 921114 for violation of UCMJ, Article 86, Leaving place of duty; and misconduct due to a commission of a serious offense as evidenced by: CO's NJP on 920313 for violation of UCMJ, Article 91 (2) Willful disobedience of petty officer; CO's NJP on 920709 for violation of UCMJ, Article 108, Damage to United States Military Property and CO's NJP on 920728, for violation of the UCMJ, Article 113: Misbehavior of a Sentinel.
921124:  Applicant advised of rights and having elected 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.
921127:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct evidenced by: CO's NJP on 920313 for violation of UCMJ, Article 91 (2), Willful disobedience of petty officer; CO's NJP on 920709 for violation of UCMJ, Article 108, Damage to United States Military Property and violation of the UCMJ, Article 134 Drunk and Disorderly; CO's NJP on 920728 for violation of UCMJ, Article 113, Misbehavior of a Sentinel; CO's NJP on 921114 for violation of UCMJ, Article 86, Leaving place of duty; and misconduct due to a commission of a serious offense as evidenced by: CO's NJP on 920313 for violation of UCMJ, Article 91 (2) Willful disobedience of petty officer; CO's NJP on 920709 for violation of UCMJ, Article 108, Damage to United States Military Property and CO's NJP on 920728, for violation of the UCMJ, Article 113: Misbehavior of a Sentinel. Commanding Officer’s comments (verbatim): [J_(Applicant) is one of the most frustrating individuals onboard DUBUQUE. He has been to NJP four times, counselled after each incident, but still refuses to correct his actions. I don’t believe that the military is a place for someone like J_(Applicant). He is both a disciplinary and administrative burden for my command and would best serve the Navy and himself by being discharged. I recommend that J_(Applicant) be separated from the Naval Service and, after review of the facts in this matter, that such separation be under Other Than Honorable conditions.]
921216:  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 930121 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: In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable . 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 record is devoid of any evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s service record is marred by award of non-judicial punishment (NJP) on four separate occasions, to include the appropriate retention and discharge warnings . The Applicant’s summary of service clearly reflects the Applicant ’ s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate. Relief denied.

 The following is provided for the Applicant’s information: 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.

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, effective 15 Aug 91 until
04 Mar 93), 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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