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NAVY | DRB | 2003_Navy | ND03-01166
Original file (ND03-01166.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND03-01166

Applicant’s Request
The application for discharge review was received on 20030626. 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 Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040504. 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

Applicant’s issues, as stated on the application:

“1. The first issue that I believe is important to bring up is the actual length of my military service. I only had six months to go until my time was up. I also believe that sufficient time (9 yrs) has passed and I have never had any felony charges against me. I have tried to be a productive member of society. My discharge based on what I can remember was due to misconduct on my part that was non purposeful and non criminal. I believe that I went to 3 Captains Masts at the most during my military service. One of those was even possibly dismissed. The 3 Captains Masts were all near the end of my service and not in the beginning. Even if I’m unable to upgrade my discharge to an Honorable one I feel that I should at least merit a General/Under Honorable Conditions discharge due to being unfit for military service. I would of course like an Honorable one if possible.”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS:

“2. We concur with the Applicant’s contention that his discharge be changed to honorable. We refer this case to the Board for their careful and compassionate consideration and request the Applicant’s discharge be reviewed for upgrade to Honorable Discharge.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     900426 - 900917  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 900918               Date of Discharge: 940316

 Length of Service (years, months, days):

         Active: 03 05 29
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 48

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (3)    Behavior: 3.26 (3)                OTA: 3.13

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM(wb*), SSDR(2)

 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 3630600.

 Chronological Listing of Significant Service Events :

900924:  Retention Warning from [RTC, NTC Great Lakes, IL]: Advised of deficiency (Non-swim qualified), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920427:  Counseling/warning is to document your recent substandard performance. Specifically: You were caught sleeping while on the aft-lookout watch by a senior Petty Officer. This demonstrates a lack of vigilance while carrying out an important duty. Recently, you did not have a white uniform ready when required. This shows a lack of preparation on your part for something that you should always have. Further breaches of discipline or poor performance will result in disciplinary measures.

930715:  NJP for violation of UCMJ, Article 113: Misbehavior of sentinel or lookout.
         Award: Forfeiture of $150.00 pay per month for 1 month, restriction and extra duty for 21 days. No indication of appeal in the record.

930716:  Retention Warning from USS SAVANNAH (AOR-4): Advised of deficiency (Violation of UCMJ Article 113 (Misbehavior of sentinel or lookout), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930728:  NJP for violation of UCMJ, Article 113: Misbehavior of sentinel or lookout.
         Award: Forfeiture of $407.00 pay per month for 1 month, restriction to USS SAVANNAH for 45 days, extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

940203:  NJP for violation of UCMJ, Article 113: Misbehavior of sentinel or lookout.
         Award: Forfeiture of $416.00 pay per month for 1 month, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
940206:  USS SAVANNAH (AOR-4) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by four nonjudicial punishments.
940206:  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.
Undated:         Commanding Officer recommended discharge by reason of misconduct due to a pattern of misconduct.

940310:  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 19940316 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 and 2: 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 separate occasions for misbehavior of a sentinel. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflect his disobedience of the orders and directives which regulate good order and discipline in the naval service, and 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, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted. The Applicant did not submit any documentation to 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 or any other evidence relating to his discharge 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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