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NAVY | DRB | 2003_Navy | ND03-00059
Original file (ND03-00059.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND03-00059

Applicant’s Request
The application for discharge review, received 021010, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 030513. 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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. (Equity Issue) This former member proffers that personal problems contributed to and sufficiently mitigated his misconduct of record to warrant upgrade of his character of service to honorable.

2. (Equity Issue) This former member further opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214
Applicant's certificate of live birth
History class records
Transcript of grades (8 pages)
Petition for dissolution of marriage, dated February 2, 1996
License and certificate of marriage, November 13, 1996
Memo for the Executive Officer dated May 16, 1988 (2 pages)
Character reference, undated
Letter from Empire College, Director of Education, dated April 12, 2000
Letter from Technology Instructor, Empire College, dated May 9, 2000
Seller's permit, dated August 2, 2002
Certificate of training, dated March 10, 1998
Certificate of completion, dated April 12, 1998
Certificate in evidence of competence in the service areas of Automobile Specialty areas, dated June 30, 1999
One page from Applicant's service record
Official Transcript

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     860618 - 860806  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 860807               Date of Discharge: 880913

 Length of Service (years, months, days):

         Active: 02 01 07                  (Does not include lost time)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 46

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.20 (2)    Behavior: 2.00 (2)                OTA: 2.70

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, AFEM, NER

 Days of Unauthorized Absence: 37

 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 :

870120:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order/regulation, to wit: failed to report to his Company Commander at 1700, 8750105.
         Award: Forfeiture of $153 per month for 1 month, correctional custody for 7 days. No indication of appeal in the record.
870120:  Retention Warning from Naval Air Technical Training Center: Advised of deficiency (Failure to obey a lawful order issued by a chief petty officer, to report to company commander, on or about 05 JAN 87.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

870128   Applicant dropped from training, NATTC Memphis, TN.

870211   Applicant acknowledged derogatory contents of his Enlisted Performance Evaluation for the period 86OCT11 to 86FEB11.

870622:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0400 to 0505, 870604.
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 30 days, reduction to AR. Reduction suspended for 6 months. No indication of appeal in the record.
870724:  NJP for violation of UCMJ, Article 86: Unauthorized absence 0500 to 0600, on 870717 and 870720.
         Award: Correctional custody for 30 days. No indication of appeal in the record.

870724:  Vacate suspended reduction to AR.
880505:  Retention Warning from USS OKINAWA (LPH-3): Advised of deficiency (You have committed one or more offenses against the Uniform Code of Military Justice (UCMJ), or you have been convicted of (an) offense(s) by a civil count. Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. [Note: Hand written date reflects 5 MAR 88.]

 880702   To unauthorized absence from USS OKINAWA (LPH-3). Intentions unknown.

880731   Surrendered on board USS OKINAWA (LPH-3). Retained on board for disciplinary action.

880805   To unauthorized absence from USS OKINAWA (LPH-3). Intentions unknown.

880813   Apprehended by civil authorities at Portland, OR on charges of breaking into parking meters. Civil charges pending. Retained on board pending disciplinary action.

880820:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 1945, 880702 to 0001, 880731 (29 days), (2) Unauthorized absence from 0015, 880805 to 0825, 880813 (8 days).
         Award: Forfeiture of $300 per month for 2 months, bread and water for 3 days, reduction to AR. No indication of appeal in the record.
880823:  USS OKINAWA (LPH 3) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by three or more NJP's within the current enlistment and misconduct due to commission of a serious offense.
880823:  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.
880901:  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. Commanding Officer’s comments (verbatim): [Counseling requirements met IAW MILPERSMAN 3630600. SNM signed page 13 on 5 May 1988. SNM has no potential for further naval service. Further counseling in this case would be fruitless. I recommend AR B_ (Applicant) be separated from the naval service by reason of misconduct due to a pattern of misconduct as evidenced by three or more NJP’s within a current enlistment and misconduct due to commission of a serious military offense, and that he be discharged with an other than honorable discharge.]

880907:  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 880913 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: The Applicant claims his discharge was inequitable, he believes that his personal problems contributed to and sufficiently mitigated his misconduct while he was in the Navy. After careful review of the Applicant’s official record and personal testimony the Board discerned no impropriety or inequity in the Applicant’s discharge. The Applicant’s summary of service clearly documents the pattern of misconduct that earned the Applicant his other than honorable characterization of service. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure of that expected of a sailor. T he Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his repeated disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls far short of that required for an honorable characterization of service. The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s discharge characterization accurately reflects his service to his country. An upgrade to under honorable conditions would be inappropriate. Relief denied.

The NDRB has no authority to make recommendations to permit reenlistment, reentry, or reinstatement into the naval service or any other branch of the Armed Forces. Neither a less than honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. The “RE-4” code means the former service member is not eligible for reenlistment without prior approval of the Chief of Naval Personnel. Relief denied.

Issue 2: 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. After a complete review of the record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that his evidence of post service accomplishments was found not to mitigate the misconduct for which he was discharged. Relief denied.


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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