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NAVY | DRB | 2003_Navy | ND03-00263
Original file (ND03-00263.rtf) Auto-classification: Denied


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

ex-AN, USN
Docket No. ND03-00263

Applicant’s Request
The application for discharge review was received on 20021203. The Applicant requests that the characterization of service received at time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region. The Applicant listed the American Legion as the representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

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

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues as stated

Applicant’s issues, as stated on the application:

 “1. Issue of request for an upgrade in character of service”

 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:
Applicant’s DD Form 214
Statement in support of request for military discharge upgrade, dated November 29, 2002
Character reference, undated
Character reference from Applicant’s father, dated November 18, 2003
Character letter from Principal, The Children’s School, dated November 20, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990625 - 990715  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 990716               Date of Discharge: 010827

 Length of Service (years, months, days):

         Active: 02 01 12
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 39

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                           Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NER, AFEM

 Days of Unauthorized Absence: 110

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

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

 Chronological Listing of Significant Service Events :

990729:  Retention Warning: Advised of deficiency (February 1999, minor in possession of alcohol, Rock Hill, SC. You paid a $199.00 fine. Sometime between September 1997 and March 1998, speeding (two times), Rock Hill, SC. You paid less than $150.00 for both tickets. The information concerning the above incident was relied upon from information provided by you at the Moment of Truth an a voluntary statement from you, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 000315:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 0630, 000121 to 2100, 000220 (29 days/surrendered).
         Charge II: violation of the UCMJ, Article 87:
         Specification: Missing ship’s movement through design on 000126.
         Finding: to Charge I and II and the specifications thereunder, guilty.
         Sentence: Restriction for 45 days.
         CA action 000317: Sentence approved and ordered executed.

000704:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 1500, 000507 to 1900, 000613 (36 days/surrendered).
         Charge II: violation of the UCMJ, Article 87:
         Specification: Missed ship’s movement through neglect on 000509.
         Finding: to Charge I and II and the specifications thereunder, guilty.
         Sentence: Confinement for 30 days.
         CA action 000707: Sentence approved and ordered executed.

 000704:  Applicant to confinement.

000728:  Applicant released from confinement.

 001026:  NJP for violation of UCMJ, Article 117: Provoking speeches and gestures on 001008 to wit: “You’re a piece of SH—“, or words to that effect towards EW2, violation of UCMJ, Article 128: Assault upon Airman Apprentice by unlawfully drag him out of his rack, taking him to the deck on 001008.
         Award: Forfeiture of $100 per month for 2 months, restriction for 57 days. No indication of appeal in the record.
001211:  Retention Warning: Advised of deficiency (Alcohol related incident (altercation with another crewmember while on liberty) on or about 08 Oct 00.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
010208:  Applicant to unauthorized absence 1800, 010208.

010212:  Applicant from unauthorized absence 0800, 010212 (3 days/surrendered).

010212:  Applicant found to be alcohol dependent. Applicant commenced Level II treatment.

010214:  Applicant unauthorized absence from ARD.

010216:  Applicant dismissed from Level II treatment.

010611:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by your punishments under the Uniform Code of Military Justice during your current enlistment, misconduct due to commission of a serious offense as evidenced by your: (1) Commanding Officer’s nonjudicial punishment on 26 October 2000, for violation of the Uniform Code of Military Justice; Article 128, assault on or about 8 October 2000, (2) Summary Court-Martial on 4 July 2000, for violation of the Uniform Code of Military Justice; Article 86, unauthorized absence from 7 May 2000 to 13 June 2000, and Article 87, missing ship’s movement through design on or about 26 January 2000, (3) Summary Court-Martial on 15 March 2000 for violation of the Uniform Code of Military Justice, Article 87, missing ship’s movement through design on or about 26 January 2000, and by reason of alcohol rehabilitation failure as evidenced by your release from Level II treatment on 16 February 2001 for unauthorized absence.
010611:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
010628:  Applicant to unauthorized absence 0700, 010628.

 010710:  Applicant from unauthorized absence 0630, 010710 (11 days/surrendered).
010719:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to commission of serious offense and by reason of alcohol rehabilitation failure.

010726:  Applicant to unauthorized absence 0630, 010726.

010731:  Applicant missed ship’s movement.

010824:  COMCRUDESGRU TWO directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

010827:  Applicant discharged in absentia.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia on 20010827 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) and two court-martial convictions. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment 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.

Issue 2: 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, an alcohol-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted. The Board appreciates the Applicant’s efforts to improve his life and his involvement in his local community’s counter narcotic efforts and encourages him to continue his participation. 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 is not warranted.

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 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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