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NAVY | DRB | 2003_Navy | ND03-00108
Original file (ND03-00108.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND03-00108

Applicant’s Request
The application for discharge review, received 20021025, 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. 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030912. 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. Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. When I reported for duty at HSL-30 on 1989/12/07 I was introduced to Sr. Chief R_ who let me know that there was “no place for a man in her Navy and she will do her best to get rid of them anyway possible.” At this point I new that I was in for a ride because no one would listen to me except for a few of the guys that had already had run ins with her, one I can remember is po3L_ who soon after I met him was released on an O.T.H. I did not know how to deal with the situation that I was in except to continue and keep going forward. I do not know how a personal evaluation can drop from 3.8 to 2.0 inside of a month after being transferred under someone new! But I saw it happen first hand. All I wish for is that I am given a second chance to do something for my country; I have matured through the years and do believe I have something to offer. I would like to start with reserve duty then advance to active over the next two years if it is possible. With starting in a reserve status I can be evaluated to see if I am actually fit to be apart of the Navy! I do not feel that everything was not at my fault I know that at my young and rebellious age that I did not perform at military standard after the first time I was rote up but I also did not know what to do and felt lost. I have grown up since then and I know I can make a difference. Sincerely,

 Applicant marked the box "I HAVE PREVIOUSLY SUBMITTED AN APPLICATION ON 2002/01/22 AND AM COMPLETING THIS FORM IN ORDER TO SUBMIT ADDITIONAL ISSUES." The previous application was not found, however the statement to application (used as issue 1) is dated 2002/01/22.
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)     19881121 – 19890404      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19890405             Date of Discharge: 19910306

 Length of Service (years, months, days):

         Active: 01 11 02
         Inactive: None

 Age at Entry: 19                                   Years Contracted: 4

 Education Level: 10                                 AFQT: 62/50

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.90 (2)    Behavior: 2.20 (3)                OTA: 2.40

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 42

 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 :

901016:  NJP for violation of UCMJ, Article 86: Absent from unit on 1115-1245, 900910.
         Award: Forfeiture of $50 per month for 1 month, correctional custody for 30 days (deferred until 901018). Correctional custody mitigated to restriction and 30 days of extra duty, 29 days of which were remitted. No indication of appeal in the record.
901026:  Retention Warning from Helicopter Anti-Submarine Squadron Light Thirty: Advised of deficiency (Unauthorized absence. Unsatisfactory military bearing as evidenced by poor uniform appearance. Irresponsible behavior as evidenced by losing security badges on two separate occasions and then lying about the incident to your Branch Chief on one occasion.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
901127:  NJP for violation of UCMJ, Article 86: Absent from unit 0800, 901018 to 2230, 901116 (27 days).
         Award: Forfeiture of $362 per month for 1 month, restriction and extra duty for 30 days, reduction to AR. No indication of appeal in the record.
901218:  NJP of 901016 is modified as follows: Punishment awarded: Forfeiture of $50 per month for 1 month, restriction and extra duty for 30 days.
910204:  NJP for violation of UCMJ, Article 86: Absent from unit from 0730-1600, 910115.
         Award: Forfeiture of $150 per month for 1 month, restriction for 14 days. No indication of appeal in the record.
910206:  Helicopter Anti-Submarine Squadron Light 30 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 Commanding Officer’s nonjudicial punishment held on 16 October 1990, 27 November 1990, and 4 February 1991.

910207:  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.
910214:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

910220:  Applicant to unauthorized absence 0900, 910220.

910222:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

910306:  Applicant discharged in absentia (16 days).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 19910306 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: 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 his 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 three separate occasions thus substantiating the misconduct . 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.

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. Relief is therefore 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, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. Relief denied.

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 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), 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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