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NAVY | DRB | 2003_Navy | ND03-00409
Original file (ND03-00409.rtf) Auto-classification: Denied


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

ex-EMSN, USN
Docket No. ND03-00409

Applicant’s Request
The application for discharge review was received on 20030116. The Applicant requests that the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The Applicant lists the Veterans of Foreign Wars 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 20031215. 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 stated

 No issues were submitted by the Applicant.

Issues submitted by Applicant’s counsel/representative ( VETERANS OF FOREIGN WARS):
“1. We concur with the Applicant contention that his discharge be graded. We refer this case to the Board for their careful and compassionate consideration and request the Applicant’s discharge be reviewed for upgrading his discharge to general.”

 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)     890727 - 890806  COG
         Active: USN                        890807 - 930805  HON

 Period of Service Under Review :
Date of Enlistment: 930806               Date of Discharge: 940401

 Length of Service (years, months, days):

         Active: 00 07 26
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

Education Level: 12                        AFQT: 29

 Highest Rate: BM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, OSR

 Days of Unauthorized Absence: None

*No Marks Found in the service record.

 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 :

930806:  Reenlisted onboard USS FRANK CABLE (AS-40) for 4 years.
931015:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 107: False official statement.
Award: Restriction and extra duty for 20 days, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.
931019:  Retention Warning from USS FRANK CABLE (AS-20): Advised of deficiency (You have received nonjudicial punishment. The offenses involved failure to go to appointed place of duty, which is in violation of Article 86 and false official statement, which is in violation of Article 107 of the UCMJ. If you continue to engage in misconduct, your service record may reflect a pattern of misconduct as described in MILPERMAN 3630600), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940122:  NJP for violation of UCMJ, Article 92: Disobeying a lawful order to move hazmat to a specific area.
         Award: Forfeiture of $50.00 pay per month for 1 month. No indication of appeal in the record.

940127:  The suspended reduction in rate awarded at CO’s NJP on 931015 is hereby vacated.

940131:  NJP for violation of UCMJ, Article 128: Assault with a deadly weapon, on or about 940126, violation of UCMJ, Article 134: Disorderly conduct, on or about 940126.
         Award: Forfeiture of $500.00 pay per month for 1 month, restriction and extra duty for 45 days. Appealed 940204. Appeal denied 940215.

940131:  USS FRANK CABLE (AS-40) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of serious offense as evidenced by your nonjudicial punishment of 931015, 940122, and 940131 and by reason of misconduct due to a pattern of misconduct as evidenced by nonjudicial punishments of 931015, 940122 and 940131.
940131:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
940209:  Base driving privileges suspended for seven years.

 940228:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

940303:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct. Applicant has a civilian hearing for illegal possession of a handgun. This matter was brought to the command’s attention after initiating administrative processing.

940322:  BUPERS 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 19940401 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. 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 occasions and an adverse counseling entry on another occasion. 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 upgrade to his characterization of service. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
The Applicant’s discharge characterization accurately reflects his service to his country for the period of enlistment under review. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Additionally, 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. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge. 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 5, effective 05 Mar 93 until 21 Jul 94), 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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