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NAVY | DRB | 2003_Navy | ND03-00735
Original file (ND03-00735.rtf) Auto-classification: Denied


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

ex-GSEFA, USN
Docket No. ND03-00735

Applicant’s Request
The application for discharge review was received on 20030320. 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 20040312. 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 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:

“Issues (1): I feel that it was unjust for the type of discharge that I received. I am requesting that my discharge be change to honorable and the reason for discharge be change.

Issues (2) I am requesting that the Board review my military medical records. The reason for this request is due to the fact that their was other medical reason that lead to my Pattern of Misconduct that was “NOT” consider.

Issues (3): This discharge has put severe hardship on me. The Veterans Administration has denied me for benefits, due to the discharge. However, my case is on Appeals.”

Additional issues submitted by Applicant’s representative (American Legion):

“4. (Equity Issue) This former member finally 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
Police record check, dated October 19, 2001
Character reference, dated November 8, 2002
Character reference, dated October 30, 2002
Character reference, dated November 8 2002
Character reference, dated October 25, 2002
Character reference, dated May 16, 2002
Verification of employment, dated August 20, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     960716 - 960812  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 960813                        Date of Discharge: 000710

 Length of Service (years, months, days):

         Active: 03 10 28
         Inactive: None

 Age at Entry: 17 Parental Consent                Years Contracted: 4

 Education Level: 12                                 AFQT: 79

 Highest Rate: GSEFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (2)    Behavior: 1.00 (2)                OTA: 2.33

 Military Decorations: None

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

 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 :

970213:  NJP for violation of UCMJ, Article 92: Having alcohol in the BEQ on 970131.
         Award: Forfeiture of $171 per month for 1 month, restriction and extra duty for 12 days. No indication of appeal in the record.
980820:  NJP for violation of UCMJ, Article 86: Absence without leave.
         Award: Restriction and extra duty for 30 days, reduction to GSEFA. No indication of appeal in the record.
000406:  NJP for violation of UCMJ, Article 92. No further information found in service record.
         Award: Forfeiture of $563 per month for 1 month, restriction for 30 days, reduction to GSEFA. No indication of appeal in the record.
000710:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct, authority: NAVMILPERSMAN, Article 1910-140.

Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000710 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 NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, will change the characterization or reason for discharge if such a change is warranted. The summary of service clearly documents a pattern of misconduct which was the reason the Applicant was discharged. No other Characterization or Narrative Reason for Separation could more clearly describe the Applicant’s service. Relief denied.

Issue 2 and 3: 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 characterization of service was too harsh and that a medical condition was a contributing factor, it does not mitigate the Applicant’s disobedience, demonstrating he was unsuitable for further service. His service record is marred by award of non-judicial punishment (NJP) on three separate occasions. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing medical benefits 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 4: 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. At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty. Relief denied.

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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