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NAVY | DRB | 2003_Navy | ND03-01472
Original file (ND03-01472.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND03-01472

Applicant’s Request
The application for discharge review was received on 20030910. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing discharge review before a traveling panel. The Applicant listed American Legion 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, 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 20040628. After a thorough review of the available 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: GENERAL (UNDER 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. I C___ L. M___ respectfully request to have the status of my discharge changed. I understand that I disobeyed US Navy Regulations and I’m responsible for my actions. I realize it was negligent behavior, but at the time I was in a very emotional and abusive marriage that took my focus away from my career and priorities in life. Since my discharge I have been trying to my life back together. I have diveorced my husband and have started a new life with my son as a single mother. I am enrolled in college studying criminal justice hoping to secure a good future for me and my son. I have just started a job as a correctional officer in our county juvenile system. It would mean so much to me if you would consider changing the status of my discharge to help me pursue my career in Criminal Justice. I will put forth every effort to improve myself and regret the negligent behavior I have displayed in the past. Thank you for your king consideration in this matter.


Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
________________________________________________________________________

In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the following statement in support of this Applicant’s petition.

The service record reflects that this Applicant was issued the MUC, BER, SSDR and KCM. She was awarded NJP on 001222 for VUCMJ, Art. 134 and NJP on 011011 for VUCMJ, Arts. 92, 134. Following due process notifications, she was discharged General (Under Honorable Conditions) due to misconduct as authorized by NAVMILPERSMAN, Art. 1910-156.

Essentially, as noted on DD Form 293, this Applicant is requesting that her discharge be upgraded because marital problems impaired her ability to serve and contributed to her misconduct of record and because she would like to pursue a career in law enforcement. She has submitted 2 pages of additional documentation attesting to her good post-service character and hard work for the Board’s consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist and support this former member in resolving any improprieties or inequities in the character and basis for discharge. Moreover, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724; SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Employment Reference Letter dated June 18, 2003
Character Reference Letter dated April 4, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990630 - 990726  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 990727               Date of Discharge: 011228

 Length of Service (years, months, days):

         Active: 02 05 01
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 12                        AFQT: 34

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)    Behavior: 2.00 (1)                OTA: 2.83

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, BATTLE”E”, SSDR, KCM, NDSM

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

000619:  Retention Warning: Advised of deficiency (Failure to muster at appointed place of duty on time, resulting in Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

001222:  NJP for violation of UCMJ, Article 134: Underage drinking.
         Award: Forfeiture of $465.00 per month for 1 month, extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
001228:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 134: General Article (Underage Drinking)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010216:  Applicant completed Alcohol Impact Early Intervention course.

010529:  Retention Warning: Advised of deficiency (Causing damage to United States Government property, writing checks for which insufficient funds were available, and driving on base after driving privileges were suspended), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

011004:  NJP for violation of UCMJ, Article 92: Failure to obey order, violation of UCMJ, Article 134: Drunkenness.
Award: Restriction for 60 days, reduction to E-1. No indication of appeal in the record.
011026:  Applicant notified of intended recommendation for discharge general under honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct commission of a serious offense and alcohol rehabilitation failure.
011026:  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 submit a written statement for consideration by the Separation Authority and the right to obtain copies of the documents used to support the basis for the separation

020115:  Commanding Officer recommended discharge general under honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct commission of a serious offense and alcohol rehabilitation failure.

*Complete discharge package not available

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011228 general under honorable conditions for misconduct due to a pattern of misconduct (A). In the absence of a complete discharge package, the Board presumed regularity in the conduct of governmental affairs (B) and, after a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, found that the discharge was proper and equitable (C and D).

Issue 1. When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A general discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by two nonjudicial punishment proceedings for violations of Articles 92 and 134 of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief denied.

The Applicant contends that her problems in the Navy can be attributed to her “emotional and abusive marriage.” While she may feel that her marriage was the underlying cause of her misconduct, the record clearly reflects her willful misconduct and demonstrated she was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for her conduct or that she should not be held accountable for her actions. Relief on this basis is denied.

Issue 2. Normally, to permit relief, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no such errors after a review of Applicant’s case. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. Therefore, no relief is appropriate.

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 documentation to support any claims of post-service accomplishments or any other evidence related to her 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 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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