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NAVY | DRB | 2002_Navy | ND02-00950
Original file (ND02-00950.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
ex-EWSA, USN
Docket No. ND02-00950

Applicant’s Request
The application for discharge review, received 020621, 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 Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030414. 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. I believe I was going an excellent job with 3.8 evals and many qualifications, including Navy Unit Citation, Armed Forces Expeditionary, and Sea Service Ribbons. The problem started when I went back to Tech School. I had some previous UA's. I was late for muster. I lived off base as I was married and had a hard time with midwatches and muster. The same morning, I had a new daughter when I came back to Tech School which was even harder to get sleep. I was with an instructor and two other students, when one of them got in trouble with the law. The Captain (B_'s) got the news about the instructor being with us. He wanted to discharge us. The Review Board requested that we not be discharged. His fraternizing rule between students and instructors was a command rule and not a Navy rule, as we were all enlisted and we were all friends. This made Capt. B_ mad. He stripped me of my petty officer ensignia, sent the instructor to Guam, and told me I would have to go back to my old ship as an E-3 and would have to reenlist to get my Tech School back. My Naval Experience was great until this occurred. Although I'll admit it was easier at sea, because I couldn't be late. (oversleeping) I respectfully request the Board to Review this discharge and upgrade it to Honorable. I gave 3 1/2 years of exceptional dedication to serve my country. The final UA's and Captains Masses (2) were when I went UA to assure my discharge as I just wanted to Get Out, after losing my rank and Tech School. Other than that I gave everything I had to be a good sailor. And I was. Thank you.

 2. Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on 8/19/2002 and the following comments are hereby submitted: We concur with Applicant's contention during the 3 years he served on active duty he was accelerated advanced to EW3.

We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgraded to Honorable.
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)     840816 - 850220  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 850221               Date of Discharge: 880923

 Length of Service (years, months, days):

         Active: 03 07 03
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 50/54

 Highest Rate: EW3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.70 (2)    Behavior: 3.40 (3)                OTA: 3.80

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

 Days of Unauthorized Absence: 13

 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 :

850918:  Retention Warning from Naval Technical Training Center: Advised of deficiency (Go from appointed place of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 850919:  NJP for violation of UCMJ, Article 86 (3 specs): (1) Go from appointed place of duty on 2105, 850912, (2) Go from appointed place of duty on 1800, 850916, (3) Go from appointed place of duty on 0310, 850917.
         Award: Forfeiture of $50 per month for 1 month, restriction and extra duty for 10 days. No indication of appeal in the record.
861024:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700, 851014 to 1416, 851015 (1 day/surrendered).
         Award: Correctional custody for 30 days. No indication of appeal in the record.
880324:  NJP for violation of UCMJ, Article 86: Unauthorized absence from organization on 0640-0820, 880322, violation of UCMJ, Article 92: Failure to obey a lawful order on 880310, by fraternizing with a staff member.
         Award: Forfeiture of $250 per month for 2 months. No indication of appeal in the record.

880622   An Administrative Discharge Board, found no further action appropriate as member was not issued page-13 counseling warning from parent command. His page-13 given during a previous assignment to UIC 35096 cannot be used for processing which invalidates processing for “PATTERN OF MISCONDUCT.’ Administrative Discharge Board found member not guilty of “Misconduct due to commission of a serious offense.”

880720:  Retention Warning from Naval Technical Training Center: Advised of deficiency (Unauthorized absence from organization.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880721:  NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence from organization on 0600-0630, 880707, (2) Unauthorized absence from organization on 0700, 880711 to 1446, 880719 (8 days/surrendered), (3) Unauthorized absence from organization from 0700-0915, 880720.
         Award: Forfeiture of $300 per month for 1 month, restriction and extra duty for 30 days, reduction to EWSN. No indication of appeal in the record.
880728:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 1230, 880721 to 1815, 880725 (4 days/surrendered), violation of UCMJ, Article 134: Breaking restriction barracks on 1230, 880721.
         Award: Forfeiture of $300 per month for 2 months, restriction for 45 days, reduction to EWSA. No indication of appeal in the record.
880728:  Naval Technical Training Center 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 nonjudicial punishments on 19 September 1985, 24 October 1986, 24 March, 21 July, and 28 July 1988.
880812:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.
880823:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

880917:  CNMPC 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 880923 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 and 2: 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 Applicant states his character is demonstrated by his outstanding and documented evaluations and quick promotion to Petty Officer third class. The Board agrees the Applicant had good evaluations throughout his tenure in the Navy, but his performance prior to the misconduct does not mitigate his many offenses. The record is void of any evidence that the Applicant was not responsible for his conduct, he was treated unfairly 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 five separate occasions, to include the appropriate retention and discharge warnings . While he may feel that his marriage and new baby contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service. An upgrade to honorable would be inappropriate. Relief denied.
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 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. E vidence 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. 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 15560A, effective 870615 - 890110), Article 3630600, SEPARATION OF ENLISTED MEMBERS 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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