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NAVY | DRB | 2002_Navy | ND02-01110
Original file (ND02-01110.rtf) Auto-classification: Denied


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

ex-EMFR, USN
Docket No. ND02-01110

Applicant’s Request
The application for discharge review, received 020807, requested that the characterization of service on the discharge be changed to honorable. 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 030424. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I (Applicant) am respectfully requesting and upgrade of my discharge. I am doing this because I wish to continue my education as well as be able to provide a stable living environment for my family. I now have a son T_ M_ Jr. and daughter M_ M_ as well as my wife L_ D_ M_ who will also greatly benefit from this upgrade. If you look at my discharge the reason why I got sent to mass the last two times was because we were overseas and I kept missing restriction musters only being a few minutes late. I had recently impregnated my wife and was extremely sluggish as well as trying to adapt to my first overseas deployment. I know that this is not the best reasons why but they are true. It was not because of defiance or insubordination. I respectfully request the board to consider these issues and ask for mercy in rendering a judgement not just on my behalf but also on the behalf of my family. Respectfully

 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)     920506 - 930215  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 930216               Date of Discharge: 940919

 Length of Service (years, months, days):

         Active: 01 07 04
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 70

 Highest Rate: EMFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 10

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

940414:  NJP for violation of UCMJ, Article 86 Unauthorized absence from 0530, 931224 until 0600, 940104 (10 days/surrendered)
         Award: Forfeiture of $466 per month for 2 months, restriction and extra duty for 45 days, reduction to EMFR. Forfeiture of $200 for 2 months, restriction and extra duty for 15 days, and reduction to EMFR suspended for 6 months. No indication of appeal in the record.
940426:  Retention Warning from USS PUGET SOUND (AD 38): Advised of deficiency (Unauthorized absence from 0530, 931224 until 0600, 940104.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940714:  Vacate suspended forfeiture of $200 per month for 2 months, restriction and extra duty for 15 days, and reduction to EMFR due to continued misconduct.

940714:  NJP for violation of UCMJ, Article 86 (10 specs): (1) Missing restricted personnel muster on 0700, 940417, (2) Missing restricted personnel muster on 0700, 940424, (3) Missing restricted personnel muster on 0700, 940424, (4) Missing restricted personnel muster on 1630, 940428, (5) Missing restricted personnel muster on 1800, 940503, (6) Missing restricted personnel muster on 0700, 940506, (7) Missing restricted personnel muster on 1630, 940506, (8) Missing restricted personnel muster on 1100, 940508, (9) Missing restricted personnel muster on 2130, 940509 (10) Unauthorized absence from appointed place of duty on 940617, violation of UCMJ, Article 92 (2 specs): (1) Disobey a lawful order by sleeping in a rack not assigned to him, (2) Violate a general regulation by possessing a bottle of cognac on board a vessel on 940617.
         Award: Forfeiture of $416 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
940811:  NJP for violation of UCMJ, Article 86 (10 specs): (1) Unauthorized absence from restricted personnel muster on 2030, 940714, (2) Unauthorized absence from restricted personnel muster on 0700, 940717, (3) Unauthorized absence from restricted personnel muster on 1500, 940717, (4) Unauthorized absence from restricted personnel muster on 0700, 940724, (5) Unauthorized absence from restricted personnel muster on 1100, 940724, (6) Unauthorized absence from restricted personnel muster on 1630, 940724, (7) Unauthorized absence from restricted personnel muster on 1630, 970725, (8) Unauthorized absence from restricted personnel muster on 0700, 940727, (9) Unauthorized absence from restricted personnel muster on 1630, 940727, (10) Unauthorized absence from restricted personnel muster on 0700, 940728.
         Award: Forfeiture of $416 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
940815:  USS PUGET SOUND (AD 38) notified Applicant 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 as evidenced by all punishments under the UCMJ during your current enlistment.
940815:  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 and to make a statement.
940819:  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.

940913:  BUPERS 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 940919 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: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While he may feel his pregnant wife was a contributing factor and his offenses were minor, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service. His service record is marred by award of non-judicial punishment (NJP) on three separate occasions thus substantiating the misconduct . It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges. In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. An upgrade to honorable conditions would be inappropriate. Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Relief denied.

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, Change 9, effective
22 Jul 94 until 02 Oct 96), 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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