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NAVY | DRB | 2003_Navy | ND03-00111
Original file (ND03-00111.rtf) Auto-classification: Denied


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

ex-YNSR, USN
Docket No. ND03-00111

Applicant’s Request
The application for discharge review, received 20021022, requested that the characterization of service on the discharge be changed to honorable. 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 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. When I was release from Active duty I receive an under other than honorable conditions discharge. I would like for the Board to review my discharge based on my military personnel file & change my discharge to Honorable.

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION." None were found.

 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)     19930223 – 19931017      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19931018             Date of Discharge: 19970425

 Length of Service (years, months, days):

         Active: 03 06 08
         Inactive: None

 Age at Entry: 19                                   Years Contracted: 4

 Education Level: 12                                 AFQT: 46

 Highest Rate: YNSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (1)    Behavior: 3.40 (1)                OTA: 3.40        4.0 evals
 Performance: 2.25 (4)    Behavior: 2.00 (4)                OTA: 2.73        5.0 evals

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM, AFSM, MUC, SSDR

 Days of Unauthorized Absence: 46

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

950403:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 0700, 950324 to 0700, 950327 (3 days/surrendered).
         Award: Forfeiture of ½ months pay for 1 month, restriction and extra duty for 30 days, reduction to YNSR. Forfeiture and reduction suspended for 6 months. No indication of appeal in the record.
950621:  Applicant advised does not meet minimum physical readiness standards and/or minimum body fat standards.
961019:  Applicant failed second PRT. Applicant warned of consequences of failing third PRT. [Extracted from Commanding Officer’s letter dated 920423.]
961112:  Applicant declared a deserter.

 961218:  NJP for violation of UCMJ, Article 86: Absence without leave from 2200, 961104-0945, 961218 (43 days/surrendered), violation of UCMJ, Article 87: Missing movement on 961105.
         Award: Forfeiture of $490.35 per month for 2 months, correctional custody for 30 days, reduction to YNSA. No indication of appeal in the record.
970113:  Retention Warning: Advised of deficiency (Unauthorized absence and missing movement.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
970408:  Applicant failed third PRT. [Extracted from Commanding Officer’s letter dated 920423.]

970422:  NJP for violation of UCMJ, Article 92: Disobey a lawful order on 970403, to wit: using a squadron telephone multiple times without obtaining approval from an officer or chief petty officer.
         Award: Reduction to YNSR. No indication of appeal in the record.
970422:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and a pattern of misconduct and convenience of the government on the basis of failure to achieve prescribed physical readiness standards as evidenced by NAVPERS 1070/613 entries dated 16 April 1997, 13 Jan 1997, 12 Nov 1996, 7 Nov 1996, 19 Oct 1996, 21 June 1995, 4 Apr 1995, NAVPERS 1070/607 (Page 7) entry dated 18 Dec 96, your Risk Factor Screening/Physical Readiness Test Results (OPNAV 6110-4) dated 8 Apr 97, and your NAVPERS 1626/7 (Report chit) dated 17 Apr 97.
970422:  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

970423:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and a pattern of misconduct and convenience of the government on the basis of failure to achieve prescribed physical readiness standards.

970425:  COMCARGRU 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 19970425 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).

 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 nonjudicial punishment (NJP) on three separate occasions. 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 honorable characterization of service. An upgrade to honorable would be inappropriate. 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, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.

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, Change 14, effective 03 Oct 96 until 11 Dec 97), 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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