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NAVY | DRB | 2003_Navy | ND03-00063
Original file (ND03-00063.rtf) Auto-classification: Denied


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

ex-MMFR, USN
Docket No. ND03-00063

Applicant’s Request
The application for discharge review, received 20021008, 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030828. 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, as submitted

1. I respectfully request review of my service record, discharge status and re-enlistment eligibility.

I would appreciate an opportunity to prove my integrity in any capacity possible, by putting to work all I have learned during my military education and life since discharge, as well as use any and all benefits afforded me with a general discharge to further improve the quality of life for my family.

I understand that an Honorable discharge upgrade may not be possible without proving that it is warranted.

Your time and consideration is appreciated.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter to Applicant from United States Coast Guard, dated September 30, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     880309 - 880907  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 880908               Date of Discharge: 921120

 Length of Service (years, months, days):

         Active: 04 02 13
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 87

 Highest Rate: MM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.73 (3)    Behavior: 3.60 (3)                OTA: 2.73

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM. JMU

 Days of Unauthorized Absence: 34

 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 :

910307:  NJP for violation of UCMJ, Article 92: Dereliction of duty, violation of UCMJ, Article 107: False official statement.
         Award: Forfeiture of $463 per month for 2 months, reduction to MMFN. No indication of appeal in the record.
920416:  NJP for violation of UCMJ, Article 90: Fail to obey commissioned officer, violation of UCMJ, Article 134: Incapacitated for duty.
         Award: Forfeiture of $460 per month for 2 months, restriction for 45 days, extra duty for 15 days, reduction to MMFB. Forfeiture of $230 and restriction for 15 days suspended for 6 months. No indication of appeal in the record.
920514:  Retention Warning from [USS SEATTLE (AOE-3)]: Advised of deficiency (Failure to obey a commissioned officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920806:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 90.
         Specification: Fail to obey lawful order
         Charge II: violation of the UCMJ, Article 134:
         Specification: Break restriction.
         Finding: to Charge I and II and the specifications thereunder, guilty.
         Sentence: Confinement for 30 days, reduction to MMFA.
         CA: Sentence approved and ordered executed.

921027:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 90.
         Specification: Fail to obey commissioned officer.
         Charge II: violation of the UCMJ, Article 134:
         Specification: Break restriction.
         Finding: to Charge I and II and the specifications thereunder, guilty.
         Sentence: Confinement for 30 days, reduction to MMFA.
         CA: Sentence approved and ordered executed except for that portion of the punishment adjudging forfeiture of $000.00 which is suspended for 3 months.

921027:  USS SEATTLE (AOE-3) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious military or civilian offense and misconduct due to a pattern of misconduct as evidenced by service record entries your current enlistment. [Extracted from Commanding Officer’s message dated 921029.]
921027:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. [Extracted from Commanding Officer’s message dated 921029.]
921029:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious military or civilian offense and misconduct due to a pattern of misconduct.

921110:  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 19921120 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).

 Issue1: A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a Sailor. The Applicant’s service was marred by award of two nonjudicial punishments (NJP) and two summary court-martials. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflect his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for a general (under honorable) characterization of service. An upgrade to honorable would be inappropriate. Relief denied.

Concerning reenlistment, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done during the processing of a formal application for enlistment through a recruiter. Additionally, The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or benefit opportunities as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Relief denied.

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 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, 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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