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NAVY | DRB | 2002_Navy | ND02-00947
Original file (ND02-00947.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND02-00947

Applicant’s Request
The application for discharge review, received 020619, requested that the characterization of service on the discharge be changed to general (under honorable conditions). 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 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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (Equity Issue) This former member 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

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980728 - 980826  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 980827               Date of Discharge: 010605

 Length of Service (years, months, days):

         Active: 02 09 09 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 32

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 127

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

990201:  Applicant to unauthorized absence at 0630 on 990201.

990202:  Applicant from unauthorized absence at 0630 on 990202 (1 day/ surrendered).

990318:  NJP for violation of UCMJ Article 86 (3 specs): (1) Failure to go to appointed place of duty on 990201, (2) Failure to go to appointed place of duty on 990313, (3) Failure to go to appointed place of duty on 990317.
         Award: Restriction and extra duty for 30 days. Restriction and extra duty suspended for 7 days. No indication of appeal in the record.
990320:  Retention Warning: Advised of deficiency (Failing to go to appointed place of duty from 0630 on 990201 until 0715 on 990202 and from 0630 on 990313 to 0630 on 990315 and from 0630 to 0745 on 990317). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
990426:  Counseling: Advised of deficiency (performance), notified of corrective actions.

990429:  Counseling: Advised of deficiency (performance).

990511:  Counseling: Advised of deficiency (performance and personal behavior).

990527:  Vacate suspended restriction and extra duty for 7 days.

990527:  NJP for violation of UCMJ Article 86 (2 specs): (1) Failing to go to or leaving place of duty at 0800-0940 on 990426, (2) Failing to go to or leaving place of duty at 0639 on 990510 until 0630 on 990511; violation of UCMJ Article 92 (3 specs): (1) Failure to obey other lawful order or regulation on 990429 by willfully going into berthing during normal working hours, (2) Failure to obey other lawful order or regulation on 990430 by not performing extra duties, (3) Failure to obey other lawful order or regulation on 990503 by not performing extra duties.
         Award: Forfeiture of $400 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
991229:  Applicant to unauthorized absence at 0630 on 991229.

 000107:  Applicant from unauthorized absence at 0715 on 000107 (9 days/ surrendered).
000217:  NJP for violation of UCMJ Article 92 (3 specs): Failure to obey a lawful order on or about 3-7 January 2000, 18-22 January 2000, and 24-28 January 2000 by failing to participate in the command remedial conditioning program, violation of UCMJ, Article 107 (2 specs): False official statements on 000211.
         Award: Forfeiture of $300 per month for 1 month, restriction and extra duty for 30 days, reduction to FR. No indication of appeal in the record.
000502:  NJP for violation of UCMJ Article 111: Driving while under the influence of alcohol on 000420, with a BAC of 0.13 grams.
         Award: Forfeiture of $502 per month for 1 month, restriction for 60 days. No indication of appeal in the record.
000628:  Applicant referred to SARDC for screening. As a result of screening it was recommended that the Applicant be scheduled for Alcohol IMPACT education program.
000720:  NJP for violation of UCMJ Article 86 (3 specs): (1) Failure to go to appointed place of duty at 0600 on 000517, (2) Failure to go to appointed place of duty at 1530 on 000518, (3) Failure to go to appointed place of duty at 1530 on 000530.
         Award: Oral reprimand. No indication of appeal in the record.
000901:  Applicant to unauthorized absence at 0630 on 000901.

 000905:  Applicant from unauthorized absence at 0630 on 000905 (4 days/ surrendered).
001017:  Applicant to unauthorized absence at 0630 on 001017.

 001121:  Civil Conviction: General District Court, Newport News, VA for violation of driving under the influence and driving on a restricted license on 001017.
 Sentence: Fine $752.00, jail for 65 days in addition to time served.
010207:  Applicant from unauthorized absence at 0730 on 010207 (113 days/ surrendered).
010308:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, misconduct due to civil conviction, misconduct due to pattern of misconduct and alcohol abuse rehabilitation failure.
010308:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.
010417:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, civil conviction, pattern of misconduct and alcohol abuse rehabilitation failure; that the misconduct warranted separation; and recommended discharge under other than honorable conditions.

010521:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, misconduct due to civil conviction, misconduct due to pattern of misconduct and alcohol abuse rehabilitation failure. Commanding Officer comments: "FR [Applicant] attended IMPACT class following a DUI of 20 April 2000. Since then, the member had additional DUI incidents on 1 October 2000 and 17 October 2000, the latter resulting in civilian confinement for 113 days. His five masts and local conviction in 24 months clearly indicates FR [Applicant]'s inability to conform to both a military lifestyle and societal norms. Rather they show his lack of desire to overcome his problems with alcohol and become a responsible Sailor. He has been an unproductive burden to this command and I strongly recommend his immediate discharge Under Other Than Honorable Conditions."

010618:  Commander, Cruiser-Destroyer Group FIVE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 010605 under other than honorable conditions for misconduct due to commission of a serious offense (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 Applicant, through counsel, contends that aspects of his post-service conduct should be considered in the recharacterization of his discharge. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge even though there is no law or regulation that provides for an unfavorable discharge to 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. Verifiable proof of 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, an employment record, documentation of community service, and certification of non-involvement with civil authorities are examples of documents that may be provided to the Board to receive consideration of relief based on post-service conduct. At this time, the documentation provided by the Applicant is not sufficient for the Board to consider an upgrade to the characterization of discharge. Relief on this basis is denied.

Additionally, the Board, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the characterization of service and/or the reason for discharge if an error or inequity exists within the separation process. The records the Board reviewed showed no such error or inequity to have occurred during this process. Further, the five nonjudicial punishments, three derogatory counseling entries, retention warning, civil conviction, and unanimous vote at his Administrative Discharge Board all indicate the equity of the Applicant’s discharge characterization. Relief on this basis is also 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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice Article 86, Absence without leave (more than 30 days) if adjudged at a Special or General Court Martial.

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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