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NAVY | DRB | 2002_Navy | ND02-00983
Original file (ND02-00983.rtf) Auto-classification: Denied


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

ex-HR, USN
Docket No. ND02-00983

Applicant’s Request
The application for discharge review, received 020701, 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 030319. 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 was discharged in NJP because I failed to do all of the extra duty I was assigned. As you review my record you will find I was also assigned an additional 45 days extra duty which I did not miss any of the days. I feel the discharge was unjustified.

 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)     880819 - 881211  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 881212               Date of Discharge: 911217

 Length of Service (years, months, days):

         Active: 03 00 06
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 13 1/2                    AFQT: 79

 Highest Rate: HN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (3)    Behavior: 3.33 (3)                OTA: 3.53

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MUC, SSDR, NUC, SASM

 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 :

901217:  NJP for violation of UCMJ, Article 95: Resisting apprehension by MM1, shore patrol on 901128, violation of UCMJ, Article 109: Destruction of property, other than military property on 901128, violation of UCMJ, Article 128: Assault on shore patrol on 901128, violation of UCMJ, Article 134: Drunk and disorderly on 901128.
         Award: Forfeiture of $405 per month for 1 month, restriction and extra duty for 10 days, reduction to HA. Reduction suspended for 6 months. No indication of appeal in the record.
901217:  Retention Warning from USNS COMFORT (T-AH 20): Advised of deficiency (Violation of the UCMJ, Article (s) 95, 109, 128, and 134.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910508:  Medical evaluation for alcohol abuse: Diagnostic Impression: Alcohol dependence. Recommendation: Recommend Level III Treatment. Patient (Applicant) has a bed date scheduled for 5 Jun 91. Also recommend patient (Applicant) be seen by psychiatry to discuss witnessing his father being shot by his mother. Patient (Applicant) scheduled to be seen by psychiatry this month.

910718:  Applicant completed Level III treatment and was instructed in the procedures for after care in accordance with OPNAVINST 5350.4B.

 910726   Authorized advancement to HM3 witheld this date due to pending disciplinary action.

910807:  NJP for violation of UCMJ, Article 116 (3 specs): (1) Participate in a breach of the peace by engaging in a fist fight in BEQ on 0155, 910328, (2) Participate in a breach of the peace by engaging in a fist fight in BEQ on 0240, 910328, (3) Participate in a breach of the peace by refusing treatment in the emergency room on 910328, violation of UCMJ, Article 128: Assault hospitalman by biting him on the nose during a fight on 910328, violation of UCMJ, Article 134: Drunkenness - incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor or any drug on 910328.
         Award: Forfeiture of $463 per month for 2 months, extra duty for 45 days, reduction to HA. Reduction suspended for 6 months. No indication of appeal in the record.
910816:  Retention Warning from National Naval Medical Center, Bethesda, Maryland: Advised of deficiency (Violation of the UCMJ, Article (s): 116, 134, 128.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910829:  Vacate suspended reduction to HA awarded at CO's NJP dated 910807 due to continued misconduct.
910911:  Applicant seen for initial aftercare interview. During the interview, the Applicant stated he had returned to drinking. Applicant did not complete aftercare papers, but did say he would attend the aftercare group the following day.
910912:  Applicant failed to show for aftercare program. Applicant elected not to participate in an aftercare program and is considered a program failure in accordance with OPNAVINST 5350.4B.
910918:  NJP for violation of UCMJ, Article 92 (3 specs): (1) Failed to obey the same by wrongfully not performing extra duty on 910810, (2) Failed to obey the same by wrongfully not performing extra duty on 910817, (3) Failed to obey on order to perform extra duty on 910831.
         Award: Forfeiture of $348000 per month for 2 months, extra duty for 45 days, reduction to HR. No indication of appeal in the record.
910919:  Commander, National Naval Medical Center, Bethesda, Maryland notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure and by reason of misconduct due to a pattern of misconduct and by reason of misconduct due to serious offense, as evidenced by service record.
910919:  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.
911002:  Commanding Officer recommended discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure, misconduct due to a pattern of misconduct and misconduct due to serious offense. Commanding Officer’s comments (verbatim): [HR M_ (Applicant) has been awarded nonjudicial punishment three times within his brief navy career. He has been given two separate page 13 warnings in an effort to get him on the right track. However, all these efforts have been to no avail. HR M_ (Applicant) has repeatedly violated his page 13’s thus exhibiting a complete disregard and respect for the Navy and it’s regulations. HR M_ (Applicant) openly expresses his dislike for the Navy as evidenced by his complete disregard for orders given to him at his 07 August 1991 nonjudicial punishment. Moreover, HR M_ (Applicant) has failed alcohol rehabilitation by returning to drinking alcohol and not attending his aftercare group sessions. It is more than apparent that this young man has absolutely no desire to be in the United States Navy and displays no potential for retention. Clearly, HR M_’s (Applicant’s) misconduct warrants an other than honorable characterization. He has taken no responsibility for his actions and displays a negative attitude toward the naval service. He has no potential for retention.]

911104:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

911213:  Applicant declined inpatient VA treatment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 911217 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: The Board disagrees with the Applicant’s claim that his discharge was unjustified. By regulation, the NDRB’s review is conducted to determine the propriety and equity of a discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge justified. The Applicant’s summary of service clearly documents the pattern of misconduct that earned the Applicant his other than honorable characterization of service. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure of that expected of a sailor. T he Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his repeated disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls far short of that required for an honorable characterization of service. The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s discharge characterization accurately reflects his service to his country. An upgrade to 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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