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NAVY | DRB | 2004_Navy | ND04-00035
Original file (ND04-00035.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND04-00035

Applicant’s Request
The application for discharge review was received on 20031001. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D. C. area. The Applicant did not respond. Subsequent to the application, the Applicant obtained representation by the Disabled American Veterans.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20040712. 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

 Applicant’s issues, as stated on the application:

1. “I C_ O_ W_ was in the process of having a background investigation done by Dekalb County Police for employment, but my application was held up for reasons of which my DD-214 stated other than honorable conditions, the detective who does or conduct these investigations stated that in order for me to continue I must have my discharge change from other than to general under honorable conditions. God knows I would really appreciate this review of my discharge to better life from my wife & myself. Things have change in my life and I have learned from the mistake I made in the past. As you can see by the recommendation I sent from my employer where I have been working the past 11 years almost 12 years now. But now I prayed about it and it is time for me to move to another level in my life, ad in order for this to happen I really would like and need the board of Navy review Help!!! Thank you in advance

Sincerely & Gracefully Yours

Mr. C_ O_ W_ (Applicant)

 Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION." None were found.
Additional issues submitted by Applicant’s representative (Disabled American Veterans):

 2. “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Under Other Than Honorable conditions (OTH) to that of General Under Honorable Conditions.

The FSM served on active service from July 16, 1986 to June 09, 1989 at which time he was discharged due to Misconduct–Pattern of Misconduct.

FSM W_ (Applicant) asks that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

Under the premises of equitable relief, FSM W_ (Applicant) request an upgrade of his discharge to that of General Under Honorable Conditions. He states the reason for this upgrade is for employment with the County Police Department, which will not only improve his family’s life but allow him to serve his community, becoming a more productive member and advancing his life to a higher level.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.

 Respectfully,”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Job reference, dated September 16, 2003
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     860714 - 860715  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 860716               Date of Discharge: 890609

 Length of Service (years, months, days):

         Active: 02 10 24         Does not exclude lost time
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 42

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.93 (3)    Behavior: 2.73 (3)                OTA: 2.93

 Military Decorations: None

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

 Days of Unauthorized Absence: 48

 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 :

880112:  Retention Warning from USS BLUE RIDGE (LCC-19): Advised of deficiency (You have failed to adhere to the rules of the Uniform Code of Military Justice pertaining to good order and discipline within the naval service.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 881123:  NJP for violation of UCMJ, Article 86: Absent from appointed place of duty on 0730, 881113, violation of UCMJ, Article 92: Disobeying a lawful order on 0900, 881113.
         Award: Forfeiture of $300 per month for 1 month, reduction to SA. Reduction suspended for 6 months. No indication of appeal in the record.
881130:  Vacate suspended reduction to SA awarded at CO’s NJP dated 881123 due to continued misconduct.
890210:  Retention Warning from USS HALSEY (CG-23): Advised of deficiency (During your first two weeks onboard USS HALSEY you failed to go to your appointed place of duty at the prescribed time on five (5) separate occasions, coupled with two (2) other incidents of misconduct; insubordination and failure to obey a lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
890223:          Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (2 specs):
         Specification 1: Failure to go to appointed place of duty on 1830, 890131.
         Specification 2: Absence from appointed place of duty on 0700-0727, 890214.
         Charge II: violation of the UCMJ, Article 92 (2 specs):
         Specification 1: Failure to obey a lawful order on 0910, 890204.
         Specification 2: Failure to obey a lawful order on 1230, 890204.
         Finding: to Charge I and II the specifications thereunder, guilty.
         Sentence: Confinement for 30 days, reduction to SR.
         CA action 890223: Sentence approved and ordered executed.

 890223:  Applicant to confinement.

 890302:  USS HALSEY (CG 23) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.
890307:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
890319:  Applicant from confinement and returned to full duty.

 890405:          Summary Court-Martial .
         Charge I: violation of the UCMJ, Article 86 (2 specs):
         Specification 1: Unauthorized absence on 0700, 890401 to 0700, 890403 (2 days).
         Specification 2: Absent from unit on 1230, 890403 to 0700, 890404.
         Charge II: violation of the UCMJ, Article 91:
         Specification: Disrespectful in language to a chief petty officer on 890404.
         Finding: to Charge I and II the specifications thereunder, guilty.
         Sentence: Forfeiture of $466.00, confinement for 30 days.
         CA action 890405: Sentence approved and ordered executed.

 890420:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a commission of a serious offense and a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

890427:  Applicant released from confinement and restored to full duty status.

 890512:  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 a serious offense.

890606:  CNMPC 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 19890609 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).

 Issues 1 and 2: In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor. The Applicant’s service record is marred by award of summary court-martial on two occasions and nonjudicial punishment thus substantiating the misconduct . The Applicant’s summary of service clearly reflects the Applicant ’ s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate. Relief denied.

 The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities 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.

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. E vidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A, Change 6 effective 11 Jan 89 until 24 May 89), 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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