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NAVY | DRB | 2003_Navy | ND03-00004
Original file (ND03-00004.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND03-00004

Applicant’s Request
The application for discharge review, received 20020925, requested that the characterization of service on the discharge be changed to General/Under Honorable conditions. The Applicant requested a personal appearance discharge review before a traveling panel closest to Baton Rouge, LA. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing. Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030812. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. (Equity Issue) This former member avers that his youth and immaturity sufficiently effected his ability to make proper judgements and this factor should be taken into account when determining whether to grant a discharge upgrade.

 2. (Equity Issue) This former member further 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:
Applicant’s DD Form 214 (2 copies)
Obituary
Character reference for attorney, dated October 18, 2002
Letter of recommendation from an Instructor, Southern University, dated October 22, 2002
Letter from ISP Probation Officer, Department of Juvenile Services, dated October 16, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990201 - 990708  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 990709               Date of Discharge: 000331

 Length of Service (years, months, days):

         Active: 00 08 23         Does not exclude lost time
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 11                        AFQT: 33

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: *NMF                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NER

 Days of Unauthorized Absence: 61

* No marks found
 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 :

991125:  Applicant to unauthorized absence 0550, 991125.

 991130:  Applicant from unauthorized absence 0550, 991130 (5 days/surrendered).
991210:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 15 days. Forfeiture of $200 per month for 1 month suspended. No indication of appeal in the record.
991210:  Retention Warning: Advised of deficiency (Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

991229:  Vacate suspended forfeiture awarded at CO’s NJP dated 991210 due to continued misconduct.

 991229:  NJP for violation of UCMJ, Article 134: Breaking restriction.
         Award: Restriction for 60 days. No indication of appeal in the record.
991229:  Retention Warning: Advised of deficiency (Breaking restriction.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

991230:  Applicant to unauthorized absence 0550, 991230.

000118:  Applicant from unauthorized absence 0020, 000118 (18 days/surrendered).

 000121:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 991229-000118 (19 days/surrendered), violation of UCMJ, Article 134: Breaking restriction.
         Award: Forfeiture of $563 per month for 2 months, restriction and extra duty for 45 days, reduction to SA. Forfeiture, restriction and extra duty suspended for 6 months. No indication of appeal in the record.
000204:  NJP for violation of UCMJ, Article 86: Unauthorized absence, to wit: restriction and extra duty musters.
         Award: Correctional custody for 30 days. No indication of appeal in the record.
000204:  Retention Warning: Advised of deficiency (Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
000224:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0630, 000205 to 0200, 000223 (17 days/surrendered).
         Award: Correctional custody for 30 days. No indication of appeal in the record.
000225:  Psychiatric evaluation: Discharge instruction: Recommend expeditious administrative separation due to presence of a severe personality disorder. Applicant is not currently suicidal/homicidal, but presents a continuing danger to self or others.
000228:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of convenience of the government due to personality disorder and misconduct due to a pattern of misconduct.
000228:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
000229:  Commanding Officer recommended discharge under other than honorable conditions by reason of convenience of the government due to personality disorder and misconduct due to a pattern of misconduct.

000321:  Commander, Amphibious Group Two 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 20000331 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).

In the Applicant’s issue 1(Equity issue), the Board determined that this issue has no merit. The Applicant states his youth and immaturity sufficiently affected his ability to make proper judgement. The Applicant was of sufficient age and maturity to join the military and was properly instructed in Navy policies and procedures. Additionally, the Applicant’s service record shows he was given several opportunities to correct his behavioral problems before being discharged from the Navy. The Applicant purposely and repeatedly violated the UCMJ and was held accountable for his actions. Based on this issue the discharge was proper and equitable. Relief is denied.

In the Applicant’s issue 2 (Equity issue), the Board determined there was insufficient documentation to consider post service accomplishments as a reason to grant relief. 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 that would support a claim for post-service consideration would include 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). The applicant did not provided any of the documentation listed above for the Board to consider. Therefore, relief based on post-service is denied.
The applicant is reminded that he is 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 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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