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NAVY | DRB | 2002_Navy | ND02-01187
Original file (ND02-01187.rtf) Auto-classification: Denied


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

ex-SA, USNR
Docket No. ND02-01187

Applicant’s Request
The application for discharge review, received 020821, 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 030612. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned that the Applicant was improperly discharged under the wrong provision of NAVMILPERSMAN, Article 3630600 due to an administrative error by the Applicant’s command. The NDRB discerned no inequity in the characterization of the Applicant’s service, but did discern an impropriety in the reason for the discharge, and determined that partial relief is warranted. The Board’s vote was unanimous that the character of the discharge shall not change but unanimous the reason for discharge will change. The discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/ SECRETARIAL AUTHORITY, authority: NAVMILPERSMAN, Article 3630900, Separation Code of JFF.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I was very young & irresponsible as a newly active duty member. Please review my discharge based on my military personnel file. Please upgrade my discharge to Honorable.

 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)     None
         Active: USN               None

 Period of Service Under Review :
Date of Enlistment: 940208               Date of Discharge: 960703

 Length of Service (years, months, days):

         Active: 02 00 20
         Inactive: 00 04 06

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 32

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (1)    Behavior: 3.40 (1)                OTA: 3.60 (4.0 Evals)
 Performance: 1.00 (1)    Behavior: 1.00 (1)                OTA: 1.00 (5.0 Evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 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 3630600.

 Chronological Listing of Significant Service Events :

940614:  Commenced 36 month of Active Duty under the Seaman Apprenticeship program.

950623:  Retention Warning from [USS CLEVELAND (LPD 7)]: Advised of deficiency (Failure to be at the assigned place of duty at the assigned time.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950623:  NJP for violation of UCMJ, Article 86: Unauthorized absence for a period of about 5 days, violation of UCMJ, Article 87: Missing movement.
         Award: Forfeiture of $478.00 pay per month for 2 months (suspended for 6 months), restriction to USS CLEVELAND for 30 days, extra duty for 30 days, reduction to next inferior pay-grade (suspended for 6 months). No indication of appeal in the record.

960220:  Retention Warning from [FCTC, Pacific, San Diego, CA]: Advised of deficiency (Unauthorized absence, lack of motivation, failure to obey orders.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960621:  NJP for violation of UCMJ, Article 86: (2 Specifications); Specification 1: Did on or about 0700, 960521, without authority, absent himself from his unit, to wit: FCTCP, and did remain so absent until on or about 0745, 960521; Specification 2: Did on or about 0700, 960522, without authority, absent himself from his unit, to wit: FCTCP, and did remain so absent until on or about 1355, 960522, violation of UCMJ, Article 91: Disrespectful in language and deportment toward PO1 H_ on or about 96053, who was then known by the said to be a superior PO1 in the execution of his office, by yelling and using obscenities.
         Award: Reduction to E-2. No indication of appeal in the record.
         
960626:  FCTC, Pacific notified applicant of intended recommendation for discharge general under honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by your being found guilty of two violations of the UCMJ, Article 86 and Article 87 at Captain's Mast on 950606, and one violation of the UCMJ, Article 91 at Captain's Mast on 960621.

960626:  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 submit statements on own behalf either verbally or in writing, to obtain copies of the documents used to support the basis for the separation.
960702:  Commanding Officer recommended 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 960703 with a characterization of general (under 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 characterization of discharge was equitable but the reason for discharge was improper (C and D).

 There was sufficient documentation in the service record to process Applicant for discharge under MILPERSMAN Article, 3630600. However, since Applicant received only two non-judicial punishments, he did not meet the criteria for discharge by reason of “pattern of misconduct,” as authorized by separation authority. The Board’s vote was unanimous that the impropriety warrants a change only to the narrative reason for separation. Partial relief is therefore granted on the basis of the impropriety of the discharge. The discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/SECRETARIAL AUTHORITY.

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 youth and immaturity were contributing factors, 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 two separate occasions for unauthorized absence and disrespectful language. 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. For the Applicant’s edification, Sailors with similar service records normally receive a discharge characterization of under other than honorable conditions.

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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