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NAVY | DRB | 2003_Navy | ND03-00262
Original file (ND03-00262.rtf) Auto-classification: Denied


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

ex-AR, USNR
Docket No. ND03-00262

Applicant’s Request
The application for discharge review, received 20021203, 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 20031017. 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 stated

1. “My discharge was improper because I was discharged three weeks before my E.A.O.S. Also my division officer recommended retention instead of separation.”

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:
Memorandum, dated December 30, 1997

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: Unknown
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19950227             Date of Discharge: 19980318

 Length of Service (years, months, days):

         Active: 03 00 12
         Inactive: None

 Age at Entry: 19                          Years Contracted: Unknown

 Education Level: Unknown                  AFQT: Unknown

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                           Behavior: NMF             OTA: NMF

 Military Decorations: None

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

 Days of Unauthorized Absence: 50

 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 :

960514:  Civil Conviction: Virginia Beach General District Court, Traffic Division for violation of illegal possession of alcohol.
 Sentence: Fined $50.00 plus court cost, license suspended for 6 months.
960709:  Applicant missed ship’s movement.

960923:  Applicant to unauthorized absence 0700, 960923.

960924:  Applicant from unauthorized absence 0700, 960924 (1 day/surrendered).

961101:  Applicant to unauthorized absence 0600, 961101.

961102:  Applicant from unauthorized absence 0700, 961102 (1 day/surrendered).

 970430:  NJP for violation of UCMJ, Article 91: Disrespect toward a petty officer, violation of UCMJ, Article 92: Failure to obey a lawful general regulation, violation of UCMJ, Article 107: False official statement; violation of UCMJ, Article 128: Assault with a dangerous weapon, violation of UCMJ, Article 134 (5 specs): (1) Drunk and disorderly; (2-5): Communicating a threat.
         Award: Forfeiture of $553 per month for 2 months, restriction for 60 days, reduction to AA. No indication of appeal in the record.
970503:  Retention Warning: Advised of deficiency (Disrespect toward a petty officer, failure to obey a lawful general order, false official statement, assault with a dangerous weapon, drunk and disorderly and four specifications of communicating a threat.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. [Complete date extracted from Commanding Officer’s letter dated 980308.]

 970826:  NJP for violation of UCMJ, Article 86 (36 specs): (1) Unauthorized absence from 0700-970708 to 0800, 970709 (1 day/surrendered), (2) Unauthorized absence 0630, 970717 to 0640, 970718 (1 day/surrendered), (3) Unauthorized absence from 0630, 970719 to 0630, 970806 (17 days/ surrendered), violation of UCMJ, Article 87: Missing ship’s movement on 970708, violation of UCMJ, Article 107: Make a false official statement between 970806 and 970814.
         Award: Forfeiture of $450 per month for 2 months, restriction and extra duty for 30 days, reduction to AR. No indication of appeal in the record.
970930:  Applicant to unauthorized absence 0630, 970930.

 971017:  Applicant to unauthorized absence 0630-0845, 971017.

971028:  Applicant to unauthorized absence 0630-1000, 971028.

971030:  Applicant from unauthorized absence 1430, 971030 (30 days/surrendered).
971211:  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 serious offenses as evidenced by your nonjudicial punishments of 30 April 1997, and 26 August 1997 during your current enlistment.
971211:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
980217:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote of 3 to 0, found that the Applicant had committed misconduct due to a pattern of misconduct, and by a vote of 2 to 1, found that the Applicant had committed misconduct due to commission of a serious offense, and by a vote of 2 to 1, that the misconduct warranted separation, and by a vote of 2 to 1, recommended discharge general (under honorable conditions).

980309:  Commanding Officer directed discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct. Commanding Officer’s comments (verbatim): AR V_ (Applicant) went to an administrative board on 17 February 1998. The Board found that AR V_ (Applicant) did commit misconduct due to a pattern of misconduct and misconduct due to commission of serious offenses. Based on AR V_’s (Applicant’s) behavior while on board, I concur that AR V_ (Applicant) should be separated from the naval service with a discharge characterization as general (under honorable conditions).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980308 with a 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 states that he was discharged 3 weeks before his end of obligated service and that his division officer recommended retention.

Although the Applicant may have been discharged 3 weeks before the end of his obligated service, his misconduct began 1 year and 3 months after his enlistment and continued until he was finally discharged. The Applicant was issued a retention warning after his first NJP, giving him the opportunity to change his behavior. The Applicant failed to comply with the conditions of the retention warning and was subsequently discharged. His division officer may have recommended retention but the Commanding Officer was the approving authority to discharge him with a characterization of General (under Honorable conditions). The discharge was proper and equitable. Relief denied.

The following is provided for the benefit of the Applicant. Normally, to permit relief, an error or inequity must have occurred during the execution of the discharge for the period of enlistment in question. No errors or inequities were discovered during the execution of this discharge. 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. 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 can be considered. Examples of documentation to forward to the Board include proof of educational pursuits, verifiable employment record(s), documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle (if appropriate). At this time, the applicant has not provided any documentation for the Board to consider. Therefore, no relief will be granted.
The applicant is reminded that he is eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at personal appearance hearing is recommended but not required.

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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