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NAVY | DRB | 2002_Navy | ND02-00853
Original file (ND02-00853.rtf) Auto-classification: Denied


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

ex-ENFA, USN
Docket No. ND02-00853

Applicant’s Request
The application for discharge review, received 020603, 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 Veterans of Foreign Wars 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: General/(UNDER HONORABLE) CONDITIONS/Misconduct - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I would like to receive an upgrade from a General under Honorable to an Honorable Discharge. Please receive all documentation pertaining to my discharge. Please order all my service medical and administrative records from the US Navy.

 2. Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on 11/13/02 and the following comments are hereby submitted: We concur with the Applicant's contention that his discharge be upgraded.

We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrade to Honorable.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Department of Veterans Affairs dated May 16, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     850517 - 851107  COG
         Active: USN                        851108 - 901205  HON

 Period of Service Under Review :
Date of Enlistment: 901206               Date of Discharge: 921211

 Length of Service (years, months, days):

         Active: 02 00 06
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

 Education Level: 12                        AFQT: 64/66

 Highest Rate: EM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.15 (4)    Behavior: 3.10 (4)                OTA: 3.25

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC (2), SSDR (4), NEM, HSM, NDSM

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).
 Chronological Listing of Significant Service Events :

910913:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Absent from appointed place of duty 0730-1105, 910904, (2) Absent from appointed place of duty 0730-0755, 910905.
         Award: Extra duty for 14 days, reduction to EMFN. Reduction suspended for 6 months. No indication of appeal in the record.
910913:  Retention Warning from Assault Craft Unit Five, Camp Pendleton, CA: Advised of deficiency (Unauthorized absence, tardiness, and poor military conduct.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920310:  NJP for violation of UCMJ, Article 86: Absent from appointed place of duty 0700-0830, 920212.
         Award: Extra duty for 20 days, reduction to EMFA. Reduction suspended for 6 months. No indication of appeal in the record.

 920311:  Vacate suspended reduction awarded at CO's NJP dated 910913.

 920925:  NJP for violation of UCMJ, Article 86 (6 specs): (1) Absent from place of duty 0730-0755, 920824, (2) Absent from place of duty 1230 -1305, 920826, (3) Absent from place of duty 0730-0745, 920828, (4) Absent from place of duty 0720-0745, 920916, (5). Absent from place of duty 0720-0830, 920917, (6) Absent from place of duty 0720-0830, 920921.
         Award: Forfeiture of $521 per month for 2 months, reduction to EMFA. No indication of appeal in the record.
921019:  Commanding Officer, Assault Craft Unit Five notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
921019:  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.
921028:  Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to a pattern of misconduct. Commanding Officer’s comments (verbatim): [Fireman Apprentice J_ (Applicant) is a habitual offender in the area of unauthorized absence. Although all unauthorized absences have been for short periods of time, he has demonstrated no ability to correct this shortcoming. His performance during his six years of active service has been good with the exception of the aforementioned shortcoming. In view of the foregoing, I recommend EMFA J_ (Applicant’s) expeditious discharge due to lack of potential, however, I strongly recommend his characterization of service should be under general conditions.]

921123:  BUPERS directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to a pattern of misconduct.

930510   DD FORM 215 issued to correct DD FROM 214 block 18 to read “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 8 NOV 85 UNTIL 5 DEC 90 NO FURTHER ENTRIES”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 921211 under honorable conditions (general) 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: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. The Applicant’s service record is marred by award of non-judicial punishment (NJP) on three 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 honorable conditions would be inappropriate. Relief denied.
Additionally, 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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