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NAVY | DRB | 2003_Navy | ND03-01512
Original file (ND03-01512.rtf) Auto-classification: Denied


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

ex-SN, USN
Docket No. ND03-01512

Applicant’s Request
The application for discharge review was received on 20030924. 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. Subsequent to the application, the applicant obtained representation by the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040628. 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.


Issues submitted by Applicant’s counsel/representative ( VETERANS OF FOREIGN WARS):
1. “We concur with the Applicant’s contention that her discharge be upgraded. We refer this case to the Board for their careful and compassionate consideration and request the applicants discharge be upgraded to General.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Letter from Applicant (2 pages)
Character Reference Letter
Letter from National Personnel Record Center dated August 18, 2003
Certification of Military Service
Copies from Service Record (17 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     880225 - 890220  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 890221               Date of Discharge: 921105

 Length of Service (years, months, days):

         Active: 03 08 15
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 29

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (4)    Behavior: 3.50 (4)                OTA: 3.75

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR(2 ND ), NDSM, BATTLE”E”, SASM(wb*), HSM

 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 :

900907:  Retention Warning from [USS SIERRA (AD-18)]: Advised of deficiency (On 7 September 1990 you were awarded CO’s NJP for violation of the UCMJ, Article 91.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900907:  NJP for violation of UCMJ, Article 91: Disrespect to a senior petty officer.
         Award: Forfeiture of $75.00 pay per month for 2 months. No indication of appeal in the record.

920102:  Retention Warning from [USS SIERRA (AD-18)]: Advised of deficiency (On 2 January 1992, you were awarded CO’s NJP for violation of the UCMJ, Article 117, using provoking words or gestures, Article 128, assault and Article 134, disorderly conduct), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920102:  NJP for violation of UCMJ, Article 117: Using provoking words, violation of UCMJ, Article 128: Assault with a dangerous weapon, violation of UCMJ, Article 134: Disorderly conduct.
         Award: Restriction for 15 days. No indication of appeal in the record.
920827:  NJP for violation of UCMJ, Article 134: Disorderly conduct.
Award: Restriction and extra duty for 30 days (suspended for 6 months). No indication of appeal in the record.
920830:  USS SIERRA (AD-18) 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 three nonjudicial punishments in your current enlistment and by reason of misconduct due to commission of serious offense as evidenced by your nonjudicial punishment of 7 September 1990 for disrespect to a senior petty officer and your nonjudicial punishment on 2 January 1992 for assault with a dangerous weapon.
921007:  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 and the right to submit statements on own behalf either verbally or in writing before an Administrative Board or in writing if an Administrative Board is not convened.
921020:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of serious offense.

921026:  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 19921105 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 available 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. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as other than honorable 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 the award of nonjudicial punishment (NJP) on 3 occasions for violations of the Uniform Code of Military Justice (UCMJ) to include articles 91, 117, 128 and 134. An upgrade to honorable would be inappropriate. Relief is therefore 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 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, effective 15 Aug 91 until
04 Mar 93), 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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