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NAVY | DRB | 2002_Navy | ND02-00937
Original file (ND02-00937.rtf) Auto-classification: Denied


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

ex-OSSN, USN
Docket No. ND02-00937

Applicant’s Request
The application for discharge review, received 020618, requested that the characterization of service on the discharge be changed to honorable. 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 030410. 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)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. (Equity Issue) His violations of the UCMJ notwithstanding, this former member avers that his overall service record supports a higher 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
Applicant's leave and earnings statement for April 28, 2002 to May 11, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR            960622 - 920625  To Active Duty
         Active: USNR              960626 - 990911  HON (Release from
                                                                        AcDu & Transfer to IRR*)
         Inactive: USNR            990912 - 990928  HON (to enlist USN)

*Reserve Obligation Termination Date: 040621

 Period of Service Under Review :
Date of Reenlistment: 990929             Date of Discharge: 010213

 Length of Service (years, months, days):

         Active: 01 04 15
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 11                        AFQT: 31

 Highest Rate: OS2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                           Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: NUC, SSDR, AFEM

 Days of Unauthorized Absence: 4

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

990929:  Applicant reenlisted USN for 4 years.

 001208:  NJP for violation of UCMJ, Article 107: False official statement.
         Award: Forfeiture of $760 per month for 1 month, restriction and extra duty for 30 days, reduction to OS3. Forfeiture suspended for 90 days. No indication of appeal in the record.
001208:  Retention Warning: Advised of deficiency (False official statement.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

0101XX:  Applicant arrested for gang related assault charges. Applicant has not been convicted of any civilian charges prior to this administrative separation processing.

010131:  Vacate suspended forfeiture awarded at CO's NJP dated 001208 due to continued misconduct.

010206:  NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence from 0700-0730, 010111, (2) Unauthorized absence from 0700-0735, 010112, (3) Unauthorized absence from 010125 to 010127 (2 days).
         Award: Forfeiture of $693 per month for 1 month, restriction and extra duty for 30 days, reduction to OSSN. Reduction suspended for 2 months. No indication of appeal in the record.
010209:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 010122 to 010125 (3 days), violation of UCMJ Article 87: Missing ship's movement on 010122.
         Award: Forfeiture of $693 per month for 1 month, confinement on bread and water for 3 days, reduction to OSSN. No indication of appeal in the record.
010212:  Applicant notified of intended recommendation for 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.
010212:  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.
010607:  Commanding Officer directed discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense. Commanding Officer’s comments (verbatim): OSSN (Applicant) does not adhere to the rules and regulation of this command or the United States Navy. He is unwilling to conduct himself in a manner conducive to good order and discipline. OSSN (Applicant's) involvement with civilian authorities and identified him as a local gang member and civil charges are pending for assault. Based on all the facts, I believe the expeditious separation of OSSN (Applicant was in the best interest of the naval service. OSSN (Applicant) falls within the parameters of reference (c) and an administrative discharge was ordered under these circumstances with a Characterization of service as General.

010607:  Commanding Officer directed the Applicant's discharge general (under 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 010213 general (under 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).

 The Board disagrees with the Applicant's contention that he served the United States well and he is entitled to an upgrade. When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. T he Applicant’s service was marred by three separate non-judicial punishments for violations of Articles 86, 87, and 107 of the Uniformed Code of Military Justice. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

 The following is provided in response to the Applicant’s second issue. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Outstanding post-service conduct, 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 may be considered. Examples include documentation such as educational pursuits, verifiable employment record(s), documentation of community service, and certification of non-involvement with civil authorities. At this time, the applicant has not provided such documentation for the Board to consider. Relief denied.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge. 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 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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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