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NAVY | DRB | 2002_Navy | ND02-01064
Original file (ND02-01064.rtf) Auto-classification: Denied


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

ex-SA, USNR
Docket No. ND02-01064

Applicant’s Request
The application for discharge review, received 020728, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance discharge review before a traveling panel closest to Norfolk, Virginia. The Applicant listed the Disabled American Veterans as the representative on the DD Form 293. In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. area. The NDRB also advised that the Board 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I entered the Navy July 22, 1996, and following successful completion of Boot Camp training, was assigned to the U.S.S Nimitz (CVN-68). I was 18 years of age and very immature. I had trouble adjusting to the Navy and to shipboard life in general.
I was assigned to the Deck Department, as a non designated striker, and had dreams of becoming a Gunnersmate and joining the Navy's elite special operations group (SEALs). Aboard ship, I was initially, temporarily assigned to the galley where, for three months, my performance was on par with the average person working in this facility. My permanent assignment was the Deck Department, where I was assigned to the Second Division work center. My duties were janitorial in nature and not very appealing. I'd gone from being a civilian factory worker to Navy janitor, and to less than appealing living conditions. I felt my talents were not being utilized, and I was very unhappy with the situation. I now attribute those negative thoughts and actions to immaturity, I did not understand the military hierarchy and, rather than do the mature and correct thing (listen and learn), I chose to approach my Navy duties and responsibilities in a lackluster and rebellious manner. From 1997 until my discharge in February of 1999, I committed a series of minor infractions of Navy regulations. Although these disciplinary issues were minor in nature, they were multiple and became more than my command chose to deal with. I was given an Other Than Honorable discharge following my third Article 15 hearing. Since leaving the Navy I have become a mature and responsible citizen. I have been working as an apprentice Electrician for the past two years and attending college, and conducting my personal affairs in a responsible manner. I respectfully request to have the O.T.H upgraded to Honorable, which will allow me to return to military service and serve my country in a manner in which and my family can be proud.

 2. Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by the Applicant in his request that he be given the opportunity to change his Under Other Than Honorable Discharge to an General (Under Honorable Conditions) Discharge.

The (FSM) entered the United States Naval Services July 22, 1996 and separated on July 24, 1999 during this period the FSM committed several UCMJ Articles and infractions to include Violation of a Lawful Order, Failure to go appointed Place, Dereliction of Duty, and Drunkenness. The FSM narrative for character of service of discharge was (Due to a continued Pattern of Misconduct) which was the subsequent reason he was separated from service with Under Other Than Honorable Conditions Discharge. The (FSM) now is requesting to contribute his actions for these above cited violations to what he feels was a patter of immature behaviors and his youthful negative endeavors. The FSM feels these immature endeavors and actions lead him to act out in what he now views as extremely harmful behaviors that he now really regrets and now realizes the severe impacts it had not only on his social and employment opportunities now, but certainly will impact his employment opportunities in the near and distance future.

The (FSM) now respectfully requests an equitable standard be applied as well as equity in treatment in seeking the boards' approval to afford him the opportunity to receive a General (Under Honorable Conditions) Discharge as a member of the United Naval Services for what he considers were issues relating to his mental disorder in service.

The (FSM) sincerely hopes that by respectfully requesting and being granted an Honorable Discharge from the U S Naval Services, he feels this is a matter of Supreme Honor and Respect he will cherish throughout his lifetime.

The (FSM) also states he had always tried to achieve Honor and Respect during his entire enlistment of military duty in the Naval Services, he just failed on these instances on this enlistment and is now is paying for it for the rest of his life. The DAV respectfully request that the (FSM) be given complete and duly consideration by the board.

We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now wishes to correct the General character of his discharge from Misconduct (Under Other Than Honorable) Discharge to a General Discharge (Under Honorable Conditions).

We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.
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: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 960612               Date of Discharge: 990212

 Length of Service (years, months, days):

         Active: 02 06 21
         Inactive: 00 01 09

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 11 GED           AFQT: Unknown

 Highest Rate: SN

 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: None

*No Marks Found in the service record.

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

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

 Chronological Listing of Significant Service Events :

960722:  Applicant to active duty.

 971211:  NJP for violation of UCMJ, Article 92 (2 specs): (1) Failure to obey a lawful order on 971030, (2) Dereliction in the performance of duty on 971115.
         Award: Forfeiture of $150 per month for 1 month, confinement on bread and water for 3 days. No indication of appeal in the record.
971211:  Retention Warning: Advised of deficiency (Repeated nonjudicial punishments), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. [Extracted from Commanding Officer's message dated 990114.]

971211:  Applicant to confinement.

971213:  Applicant released from confinement.

 980730:  NJP for violation of UCMJ, Article 86 (3 specs): (1) Failure to go to appointed place of duty on 0630, 980605, (2) Failure to go to appointed place of duty on 0630, 980608, (3) Failure to go to appointed place of duty on 0630, 980610, violation of UCMJ, Article 92: Dereliction in the performance of duties on 980608.
         Award: Forfeiture of $568 per month for 1 month, correctional custody for 30 days. No indication of appeal in the record.
981022:  NJP for violation of UCMJ, Article 92: Failure to obey lawful order on 981002, violation of UCMJ, Article 134: Drunkenness, incapacitated for duty through prior wrongful indulgence in intoxicating liquor.
         Award: Forfeiture of $519 per month for 1 month, restriction for 45 days, reduction to SA. No indication of appeal in the record. [Extracted from Commanding Officer's message dated 990114.]
981214:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct. [Extracted from Commanding Officer's message dated 990114.]
981214:  Applicant advised of rights and having elected 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. [Extracted from Commanding Officer's message dated 990114.]

981223:  Medical Evaluation: Applicant is an alcohol abuser without dependence. Recommend Applicant receive Outpatient CAAC Level II prior to separation. [Extracted from Commanding Officer's message dated 990114.]
990114:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct. Commanding Officer’s comments (verbatim): SNM has been given several opportunities and a reasonable period of time to modify his personal behavior and become a responsible sailor. SNM possesses no potential for further service as evidenced by his continued misconduct. I strongly recommend that SNM be separated from the naval service with characterization of service as other than honorable.

 990119:  Applicant to unauthorized absence for TAD (Alcohol Impact Class).

 990121:  COMNAVAIRLANT Norfolk, VA 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 980212 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).

Issues 1 and 2. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions and an adverse counseling entry. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. While he may feel that his immaturity and trouble adjusting to shipboard life were factors that contributed to his actions, 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. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity occurred during the Applicant’s enlistment. Additionally, 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. Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct. The Applicant’s evidence of post-service conduct was found not to mitigate the offense for which he was discharged. Relief not warranted.

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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