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NAVY | DRB | 2002_Navy | ND02-01172
Original file (ND02-01172.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND02-01172

Applicant’s Request
The application for discharge review, received 20020807, 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 listed American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031003. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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 submitted by Applicant’s counsel/representative (American Legion):

“1. (Equity Issue) This former member requests that the Board include provision of SECNAVINST 5420.175C,, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.”

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)     19891205 – 19900102      COG
         Inactive: USMCR (DEP)    19870121 – 19870824      COG
 Active: USMC              19870825 – 19871021      ELS (Performance and
 Conduct)
 Active: USN                        None
Period of Service Under Review :
Date of Enlistment: 19900103             Date of Discharge: 19911115

 Length of Service (years, months, days):

         Active: 01 10 13
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

Education Level: 12                        AFQT: 31

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 3.00 (2)                OTA: 3.10

 Military Decorations: None

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

 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 :

900315:  You are retained in the Naval Service, in spite of your defective enlistment and induction due to fraudulent entry into the Naval Service as evidenced by your failure to disclose your pre-service involvement with civil authorities consisting of the following: Speeding, seatbelt, FTA x 2. Charges suspended. However, any further deficiencies in performance or conduct may result in processing for administrative separation, such processing will consider all deficiencies and misconduct during your current enlistment, both prior to and subsequent to the date of this action and may result in a discharge under honorable conditions. This authority for retention does not waive requirements for selected assignment policies.

901213:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation; violation of UCMJ, Article 128: Assault; violation of UCMJ, Article 134: Drunk and disorder.
         Award: Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 30 days, reduction to next inferior pay grade (suspended for 6 months). No indication of appeal in the record.

910116:  NJP for violation of UCMJ, Article 92: (3 Specifications), Failure to obey order or regulation; violation of UCMJ, Article 128: Assault; violation of UCMJ, Article 134: Communicating a threat.
         Award: Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 30 days, reduction to E-1. No indication of appeal in the record.

910116:  Retention Warning: Advised of deficiency (Minor misconduct). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910116:  Punishment of RIR to SA suspended at CO’s NJP of 910116 vacated this date due to continued misconduct.

911025:  NJP for violation of UCMJ, Article 86: Absence without leave.
         Award: 3 days Bread and Water. No indication of appeal in the record.

911104:  USS OGDEN notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct..
911104:  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.
911107:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

911114:  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 19911115 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 inequity must have existed during the period of enlistment in question. No errors or inequities were discovered in the execution of the Applicant’s discharge. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. 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 can be considered. Examples of documentation to forward to the Board include proof of educational pursuits, verifiable employment record(s), documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle (if appropriate). At this time, the applicant has not provided any documentation for the Board to consider. Therefore, no relief will be granted.
He 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. 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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