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NAVY | DRB | 2002_Navy | ND02-01118
Original file (ND02-01118.rtf) Auto-classification: Denied


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


ex-GSM2, USN
Docket No. ND02-01118

Applicant’s Request
The application for discharge review, received 020801, requested that the reason for the discharge be changed to Failure to Rehabilitate. 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 030501. 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 and reason for discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS) / PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 – 140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. R/R to change Block 28 of my DD Form Copy 4; from "PATTERN OF MISCONDUCT" to FAILURE TO REHABILITATE", and be entitled to separation pay.

-When I signed my admin. sep. processing notice when onboard USS COWPENS, the reason stated for my separation was failure to rehabilitate (MILPERSMAN Ref. 1910-152) and I signed on 25 July 2000, a day after Capt. R_ did. Capt R_ is CO on board USS MOBILE BAY CG-53 homeported in San Diego. Also, I was told I was entitled to sep. pay. When I arrived to TPU in Bangor Sub-base, WA, I observed members soon to be civilians, doing drugs in the open bay berthing. I could not go to sleep since they were next to my bunk. The following morning, I informed CMC about the incident. He said he was going to take me out from the berthing and put me in the barracks. During the short time I was in Washington I got moved 4 times. I never finished checking in. I never got the counseling I needed to go to civilian life. I never checked out either. When I left that base I even kept my ID Card. I talked to an NIS agent and he talked me into helping them get those guys busted. A day later, on August 17, I was told by legal (PO1 S_) in TPU to sign a new admin sep notice but this time the reason was "PATTERN OF MISCONDUCT" (MILPERSMAN 1910-140) therefore not entitled to sep. pay. PO1 S_ said I didn't have another choice but sign it or I'll get sent back to the open bay berthing with those guys. Chief P_ over at PSD told me to appeal this case cause he believes TPU was trying, in his own words, "Screw me".

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214
Administrative Separation Processing Notice - Administrative Board Procedure, dated July 25, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR            921013 - 930301  COG
         Active: USNR              930302 - 950713  HON

 Period of Service Under Review :
Date of Enlistment: 950714               Date of Discharge: 000821

 Length of Service (years, months, days):

         Active: 05 01 08
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4 (15 months extension)

 Education Level: 12                        AFQT: 74

 Highest Rate: GSM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.75 (4)    Behavior: 2.35 (4)                OTA: 3.10

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, NER (2), SSDR (5), HSM, SASM with Bronze Star

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

971016:  NJP for violation of UCMJ, Article 90: Willfully disobey a lawful command on 971011, violation of UCMJ, Article 128 (2 specs): (1) Attempt to assault HMC(SW) by swinging his fist at him on 2112, 971011, (2) Attempt to assault CTO1 by swinging his fist at him on 2112, 971011, violation of UCMJ, Article 134: Drunk and disorderly conduct on 2112, 971011.
         Award: Restriction and extra duty for 30 days. No indication of appeal in the record.
971019:  Retention Warning: Advised of deficiency (Inability to conform with Naval Regulations resulting in violation of Uniform Code of Military Justice Article 134: Drunk and disorderly, which conduct was of a nature to bring discredit upon the armed forces, Article 128 (2 specs): Assault, Article 90: Willfully disobeying a superior commissioned officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
         
990630:  NJP for violation of UCMJ, Article 86: Fail to go at the time prescribed to appointed place of duty on 0430, 990617, to wit: Duty Section Muster, violation of UCMJ Article 134: Incapacitated for the proper performance of duties on 0430, 990614, to wit: wrongful previous overindulgence in intoxicating liquor.
         Award: Oral reprimand. No indication of appeal in the record.
991107:  NJP for violation of UCMJ, Article 134: Drunkenness.
         Award: Forfeiture of $100 per month for 2 months, restriction for 45 days, extra duty for 15 days, reduction to GSM3. Reduction suspended for 6 months. No indication of appeal in the record.
000816:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.
000816:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
000816:  Commanding Officer directed discharge general (under 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 000821 general (under honorable conditions) for 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).

 Responding to the Applicant’s issue, the separation process was in strict compliance with the Naval Military Personnel Manual. I n accordance with regulation, dual or multiple processing is required if the separation authority determines that the member committed misconduct which falls under separate reasons. The applicant was dual processed for separation by reason of misconduct due to the commission of a serious offense, and misconduct due to a pattern of misconduct. The applicant’s misconduct, warranting separation for misconduct due to a pattern of misconduct and the commission of a serious offense, is clearly documented in the service record. The separation authority determined that a pattern of misconduct most clearly described the reason for discharge. No other Narrative Reason for Separation could more clearly describe why the applicant was discharged. To change the Narrative Reason Separation would be inappropriate. Relief denied.

 The following is provided for the edification of the Applicant. 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. However, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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. E vidence of continuing educational pursuits, an 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 documents that may be provided to receive consideration for relief based on post-service conduct. At this time, the Applicant has not provided such documentation for the Board to consider.

 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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