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NAVY | DRB | 2003_Navy | ND03-00682
Original file (ND03-00682.rtf) Auto-classification: Denied


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

ex-RMSN, USN
Docket No. ND03-00682

Applicant’s Request
The application for discharge review was received on 20030313. 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040212. 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. “My Undesirable Discharge was inequitable because it was based on two isolated incidents in 37 months of meritorious service with no other adverse action.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Department of Veterans Affairs decision, undated
Informal hearing, dated August 21, 2001 (12 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     950328 - 950502  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 950503               Date of Discharge: 980604

 Length of Service (years, months, days):

         Active: 03 01 02
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 68

 Highest Rate: RM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)    Behavior: 2.00 (1)                OTA: 2.57

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, AFSM, NATO, SSDR (2), NER, MUC

 Days of Unauthorized Absence: None

 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 :

970912:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty on 970815, violation of UCMJ, Article 91: Willful disobedience of a Warrant, Noncommissioned, or Petty Officer on 970815.
         Award: Restriction and extra duty for 20 days, reduction to RMSN. Reduction suspended for 6 months. No indication of appeal in the record.
970914:  Retention Warning: Advised of deficiency (Failure to go to appointed place of duty and willful disobedience of a Warrant, Noncommissioned, or Petty Officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980507:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 92 (3 specs): (1) Failure to obey lawful written order, (2) Failure to obey other lawful order, (3) Dereliction in the performance of duty.
         Award: Forfeiture of $664 per month for 2 months, restriction and extra duty for 45 days, reduction to RMSN. No indication of appeal in the record.
980508:  Retention Warning: Advised of deficiency (Unauthorized absence, failure to obey lawful written order, failure to obey other lawful order, dereliction in the performance of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
980513:  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 CO’s NJP 12 SEP 97 for violation of UCMJ Article 86: Unauthorized absence, Article 91: Willful disobedience of a Warrant, Noncommissioned or Petty Officer; 7 May 98 for violation of UCMJ Article 86: Unauthorized absence, Article 92: Failure to obey lawful written order, Article 92: Failure to obey other lawful order, Article 92: Dereliction in the performance of duty.
980513:  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.
980514:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Discharge package is incomplete.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980604 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: The Applicant states his discharge was based on two isolated incidents in “37 months.” To maintain proper order and discipline the military does not view isolated offenses as minor infractions even though they are a first time incident on an otherwise clear record. The Applicant’s service record is marred by award of non-judicial punishment (NJP ) on two separate occasions. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable. The Applicant’s summary of service clearly reflects 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. 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 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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