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NAVY | DRB | 2003_Navy | ND03-00114
Original file (ND03-00114.rtf) Auto-classification: Denied


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

ex-MMFR, USN
Docket No. ND03-00114

Applicant’s Request
The application for discharge review was received on 20021025. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031114. 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: GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

Applicant’s issues, as stated on the application:

1. “ To Whom It May Concern:

In regards to my military discharge of the USN, a general (under honorable conditions) discharge, I request to have an upgrade. I deeply regret that I could not finish my contract of my military years. I understand some changes to my attitude, and conduct would have helped me to further my career and advance. Even though I was discharged I still completed 4 years of my initial contract, and then extended for shore duty. During this time is when I was discharged, for unable to adjust to military life. There were evaluations and documents submitted to justify my discharge. Now should not these same documents be present at the time of my extension one-year prior, if I could not adjust to military life. Why would someone be allowed to extend if they could not adjust? Since the time of my discharge I have always been employed, and worked at MCI for almost 2 years. Currently at this time I am enrolled at Old Dominion University pursuing a civil engineering degree. I sincerely wish if I could request to have my discharge upgraded, so I could then request for my GI Bill benefits. I have applied for them prior to this letter, and was denied due to the nature of my discharge. And upgrade would truly help me to forgive and correct some mistakes, and correctly further my career. Thank you.

D_ M_ Jr.”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):
"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:
Statement from Applicant, dated September 16, 2002
Applicant's DD Form 214
Old Dominion University, Honor Pledge with Applicant's picture and name
Student LAN Accounts (partial pamphlet)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19950210 - 19950828               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19950829             Date of Discharge: 20000516

 Length of Service (years, months, days):

         Active: 04 08 16
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (unknown months extension)
Education Level: 12                        AFQT: 79

 Highest Rate: MM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.20 (5)    Behavior: 2.20 (5)                OTA: 2.45

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, AFSM, AFEM (2), SSDR, KOSOVO NATO, NUC

 Days of Unauthorized Absence: 3

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

950830:  You are being retained in the Naval service, despite your fraudulent induction as evidenced by your failure to disclose required basic enlistment eligibility information. This decision is based on the information you provided the Recruit Quality Assurance Interviewer and if it is found that additional information has not been disclosed, this waiver is void and you could be subject to other judicial or administrative proceedings, ie., no (unreadable) 4/95, paid $14.00, expired inspection sticker 4/95, paid $45.00.

970904:  NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence from 1030, 970709 until 1100, 970710 (1 day/surrendered), (2) Unauthorized absence from 0630-1630, 970717, (3) Unauthorized absence from 0630, 970717 until 030, 970718.
         Award: Forfeiture of $300 per month for 1 month, restriction and extra duty for 21 days. No indication of appeal in the record.
990515:  Counseling: Advised of deficiency (personal behavior, performance, and responsibility), notified of corrective actions and assistance available.

990527:  Counseling: Advised of deficiency (personal behavior, performance, and responsibility), notified of corrective actions and assistance available.

990529:  Counseling: Advised of deficiency (personal behavior, performance, and responsibility), notified of corrective actions and assistance available.

990608:  Counseling: Advised of deficiency (personal behavior, performance, and responsibility), notified of corrective actions and assistance available.

990812:  Counseling: Advised of deficiency (personal behavior, performance and responsibility), notified of corrective actions and assistance available.

991103:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 0700-0830, 990930 (1 ½ hours), (2) Unauthorized absence 0700, 991025 – 0700, 991027 (2 days/surrendered).
         Award: Restriction and extra duty for 20 days, reduction to MMFN. No indication of appeal in the record.
991104:  Retention Warning: Advised of deficiency (Unauthorized absence from unit.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
991117:  Counseling: Advised of deficiency (berthing rules), notified of corrective actions and assistance available.

000107:  Counseling: Advised of deficiency (personal behavior and responsibility), notified of corrective actions and assistance available.

000126:  Counseling: Advised of deficiency (personal behavior and responsibility), notified of corrective actions and assistance available.

000203:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 91: Wrongfully possess and use and identification card.
         Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 30 days, reduction to MMFA. No indication of appeal in the record.
000203:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 91: Disobey a lawful order from a petty officer, violation of UCMJ, Article 134: Wrongfully possess and use identification card.
         Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 30 days, reduction to MMFA. No indication of appeal in the record.
000215:  Applicant notified of intended recommendation for 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.
000302:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
000412:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge general (under honorable conditions).

000425:  NJP for violation of UCMJ, Article 86 (4 specs): Fail to go to appointed place of duty.
         Award: Forfeiture of $502 per month for 1 month, restriction and extra duty for 30 days, reduction to MMFR. No indication of appeal in the record.
000516:  Commanding Officer directed 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 20000516 general (under 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’s issue is without merit. A characterization of service of General (Under Honorable Conditions) is warranted when the member’s conduct constitutes a significant departure from that expected of a service member. The Applicant’s service was marred by award of non-judicial punishment (NJP) on five occasions, adverse counseling entries on other occasions, and performance and conduct markings below the acceptable levels for an honorable characterization. Additionally, the Applicant’s discharge was based on “pattern of misconduct” and not “failed to adapt to military service,” as indicated by the Applicant. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Issue 2. 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. Normally, to permit relief, a procedural error or inequity must have been found to have existed during the period of enlistment in question. 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, is considered. The applicant provided two documents for consideration of his post-service achievements. The applicant's efforts need to be more encompassing than those provided. For example, the applicant could have produced verifiable evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided sufficient documentation of good character and conduct. Therefore, no relief will be granted.

The Applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief denied.


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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