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NAVY | DRB | 2002_Navy | ND02-01155
Original file (ND02-01155.rtf) Auto-classification: Denied


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

ex-ICFR, USNR
Docket No. ND02-01155

Applicant’s Request
The application for discharge review, received 020814, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions or entry level separation or uncharacterized. 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 030602. 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 four to one 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 told my recruiter, that I had Attention Defict Disorder (ADD) she said, that was allright, I also put this on the form I filled out at time of induction.

While I was in the military, for some reason, that information did not make it in to my Medical Records.

The school thought the re was something wrong with me, and sent me to a Doctor, the Doctor did find out that I had problems with speech or having a problem putting my thoughts in words.

This was put in my Medical record after that a easier time in school this was in my (A) School, after boot camp.

After the school, I went to the first assignment, on the ship (USS JOHN A MOORE) FFG-19 (You may not find this ship in the Navy now, (sold to Turkey.)

My commander disregarded my Medical records, therefore, again had similar problems as I had in school & they kicked me out

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Congressman D__ M__ Privacy Act Waiver dated June 6, 2002
Letter to Congressman D__ M__ from P_ J. C_, applicant's grandmother dated May 8, 2002
Letter to Congressman D__ M__ from P_ J. C_, applicant's grandmother and F_ A. V_ A_ dated August 31, 2002
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     None
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 971028               Date of Discharge: 990426

 Length of Service (years, months, days):

         Active: 01 03 12
         Inactive: 00 02 18

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 12                        AFQT: 57

 Highest Rate: ICFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

 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 :

980115:  Commenced 4 years of Active Duty under the Tar Enlistment Program.

 980729:  Retention Warning: Advised of deficiency (Poor military performance, to wit: fail to go), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980803:  NJP for violation of UCMJ, Article 86: Failure to go at the time prescribed to his appointed place of duty.
         Award: Forfeiture of $100.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 7 days (suspended for 6 months). No indication of appeal in the record.

990115:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward a petty officer, violation of UCMJ, Article 92: Failure to obey order or regulation.
         Award: Restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

990318:  NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ, Article 134: Dereliction of duty.
         Award: Forfeiture of $443.20 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
990319:  NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ, Article 134: Dereliction of duty, violation of UCMJ, Article 92: (2 Specifications), failure to obey order, violation of UCMJ, Article 91: (2 Specifications), Insubordinate conducts toward a petty officer.
Award: Forfeiture of 1/2 months pay for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
990401:  NJP for violation of UCMJ, Article 117: Provoking speeches or gestures.
Award: Forfeiture of 1/2 months pay for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
990414:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commissioned of a serious offense.
990414:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
990401:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

990419:  COMNAVSURFPAC SAN DIEGO, CA directed the Applicant's discharge other than honorable 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 990426 other than honorable 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 that his learning disability was a contributing factor, it does 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 four 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 or general conditions would be inappropriate. Relief denied.

Regarding the Applicant’s request to change the characterization of enlistment to uncharacterized or entry level separation, by regulation, only members discharged within the first 180 days of their first enlistment can be given this kind of discharge. Since the Applicant served in excess of six months, he cannot be given an uncharacterized or entry level separation. 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. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. 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 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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