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NAVY | DRB | 2002_Navy | ND02-01281
Original file (ND02-01281.rtf) Auto-classification: Denied


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

ex-BMSN, USN
Docket No. ND02-01281

Applicant’s Request
The application for discharge review, received 20020910, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by the American Legion.

 Decision

A personal appearance hearing was conducted in Washington, D.C. on 20030911. 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 and the narrative reason for the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.
A personal appearance discharge review was conducted in Washington, D.C. on XXXXXX. 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/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.


SPN CODE HKA

 THIS IS THE CORRECT SHELL FOR Misconduct - Pattern of misconduct. 870615 - 890110 ONLY.

THE FINDING FOR MISCONDUCT, (3630600) EFFECTIVE FOR 870615 - 890110 ONLY. THE SPN CODE IS EFFECTIVE 860911 - 930627.
 A general discharge is written UNDER HONORABLE CONDITIONS (GENERAL).



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated:

“1. (Equity Issue) This former member requests that the Board include provisions of SECNAVINST 5420.174C, 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:
Memorandum to the Applicant, dated May 11, 2000
Letter of recommendation, dated January 17, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        770711 - 810710  HON
         Inactive: USNR            810711 - 820509  HON

 Period of Service Under Review :
Date of Enlistment: 820510               Date of Discharge: 871223

 Length of Service (years, months, days):

         Active: 05 07 14
         Inactive: None

 Age at Entry: 23                          Years Contracted: 6

 Education Level: 12                        AFQT: 29/49

 Highest Rate: BM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (8)    Behavior: 3.31 (9)                OTA: 3.35

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR (3), BEA (3), NDSM

 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 :

820510:  Applicant reenlisted for 6 years.

821222:  Counseling: Advised of deficiency (frequent tardiness and conduct unbecoming a petty officer), notified of corrective actions and assistance available.

830630:  Counseling: Advised of deficiency (personal responsibilities to the naval service, immaturity, lack of judgment, motivation and general disregard for rules and regulations), notified of corrective actions and assistance available.

840514:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty, violation of UCMJ, Article 92: Dereliction of duty, violation of UCMJ, Article 107: Making a false official statement.
         Award: Forfeiture of $150 per month for 2 months, reduction to BM3. Reduction suspended for 6 months. No indication of appeal in the record.
850815:  NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ, Article 87: Missing movement.
         Award: Forfeiture of $50 per month for 2 months, reduction to BM3. Reduction suspended for 6 months. No indication of appeal in the record.
850819:  Retention Warning from USS SAVANNAH (AOR 4): Advised of deficiency (Absence without leave, missing movement.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

851122:  Vacate reduction to BM3 awarded at CO's NJP dated 850815.

 851122:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, violation of UCMJ, Article 92: Failure to obey order or regulation.
         Award: Restriction for 10 days. No indication of appeal in the record.
860221:  Retention Warning from USS SAVANNAH (AOR-4): Advised of deficiency (Failure to obey order or regulation, insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

860320:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer violation of UCMJ, Article 92 (2 specs): Failure to obey order or regulation.
         Award: Correctional custody for 30 days, reduction to BMSN. No indication of appeal in the record.
860320:  Retention Warning from USS SAVANNAH (AOR 4): Advised of deficiency (Failure to obey order or regulation, insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

871029:  NJP for violation of UCMJ, Article 121: Larceny and wrongful appropriation.
         Award: Forfeiture of $437 per month for 2 months, restriction for 45 days, reduction to BMSN. Forfeiture of $437 for 1 month, restriction for 20 days and reduction suspended for 6 months. No indication of appeal in the record.
871204:  Vacate suspended restriction for 20 days, reduction to BMSN awarded at CO's NJP dated 871029 due to continued misconduct.
871204:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward officer, noncommissioned officer, or petty officer.
         Award: Punishment of reduction to BMSN and restriction for 20 days suspended at CO's NJP of 871029. No indication of appeal in the record.
871209:  USS SAVANNAH (AOR 4) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.
871209:  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.
871210:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

871216:  CNMPC 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 19871223 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: 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. The Applicant was given an additional ten business days to submit verifiable proof of any post-service accomplishments 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, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that could have been submitted. The Board appreciates the Applicant’s efforts to improve his life and encourages him to continue. However, the Applicant did not provide sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. Relief is not warranted.

The NDRB noted an administrative error on the original DD Form 214. Block 18 did not reflect the Applicant’s previous four years of honorable service. The Board notified Commander, Naval Personnel Command, Millington, TN and recommended the DD Form 214 be corrected or reissued.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A, effective 870615 - 890110), Article 3630600, SEPARATION OF ENLISTED MEMBERS 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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