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NAVY | DRB | 2003_Navy | ND03-00994
Original file (ND03-00994.rtf) Auto-classification: Denied


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


Ex- ND0300994
Applicant’s Request
The application for discharge review was received on 20030516. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions. The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region or his preference is a personal appearance hearing discharge review before a Traveling Panel closest to Huntington, WV Regional Office. The Applicant did not list any 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, also advised that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington National Capital Region.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040408. 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/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 No issues were submitted by the Applicant.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copies of DD Form 214 (2)
Statement in Support of Claim
Letter from Lawrence County Veteran’s Service Office


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     None
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 900329               Date of Discharge: 930430

 Length of Service (years, months, days):

         Active: 02 10 28
         Inactive: 00 03 03

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 31

 Highest Rate: EN3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (1)    Behavior: 3.20 (1)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

900702:  Ordered to active duty for 48 months under the TAR Enlistment program.
910214:  Retention Warning from [SSC, Great Lakes, IL]: Advised of deficiency (Poor military performance, without authority, willfully damage by breaking a window, of a value of about $120.00, military property of the United States.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910214:  NJP for violation of UCMJ, Article 108: Break window of a value of $120.00; violation of UCMJ, Article 128: Assault upon another military member in the mouth with his hand; violation of UCMJ, Article 134: (2 Specifications), Specification 1: Violation of ILL Revised Statue, consuming alcohol under 21 years of age, Specification 2: Drunk and disorderly.
         Award: Forfeiture of $150.00 pay per month for 1 month, restriction to BEQ 234 for 14 days, extra duty for 14 days. No indication of appeal in the record.

911202:  NJP for violation of UCMJ, Article 91: Insubordinate conduct towards a non-commissioned officer; violation of UCMJ, Article 92: Failure to obey order or regulation, violation of UCMJ, Article 116: Riot or breach of peace, violation of UCMJ, Article 134: General Article (Drinking under age).
         Award: Restriction to ship for 45 days, extra duty for 30 days (Holiday standdown not to count as extra duty but does count against days served), reduction to E-1 (suspended for 60 days) . No indication of appeal in the record.

921008:  Retention Warning from [USS DUNCAN (FFG-10)]: Advised of deficiency (Fighting.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

921008:  NJP for violation of UCMJ, Article 128: (2 Specification), Specification 1: On or about 2300, 921004 member did unlawfully strike another service member in the face with his fist, Specification 2: On or about 2300, 921004 member assaulted another service member by striking member with his fist.
Award: Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 14 days, reduction to next inferior pay grade (suspended for 6 months). No indication of appeal in the record.
921008:  Retention Warning from [USS DUNCAN (FFG-10)]: Advised of deficiency (Violation of UCMJ, Article 128, unlawfully strike another service member.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

921008:  NJP for violation of UCMJ, Article 128: Unlawfully strike another service member.
Award: Forfeiture of $200.00 pay per month for 1 month. No indication of appeal in the record.
921022:  Medical Officer diagnosed applicant as drug and/or alcohol dependent, Applicant refused drug and/or alcohol treatment.

930204:  USS DUNCAN (FFG-10) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure and misconduct due to a pattern of misconduct and by all punishments under the UCMJ during current enlistment.

930317:  NJP for violation of UCMJ, Article 92: (2 Specifications), Specification 1: Failure to obey order or regulation, Specification 2: Unshaved, violation of Uniform REGS, grooming standards..
         Award: Confinement to brig on Bread & Water for 3 days. No indication of appeal in the record.
930325:  Applicant advised of rights and having elected 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.
930325:  Commanding Officer recommended discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure and misconduct due to a pattern of misconduct.

930420:  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 19930430 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).

 The Applicant did not introduce any decisional issues for the Board’s consideration. 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 five separate occasions. The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls short of that required for a general (under honorable) characterization of 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, a substance-free lifestyle, 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 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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