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NAVY | DRB | 2004_Navy | ND04-00047
Original file (ND04-00047.rtf) Auto-classification: Denied


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

ex-AOAR, USN
Docket No. ND04-00047

Applicant’s Request
The application for discharge review was received on 20031003. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040715. 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: 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. It has been more than six months since my discharge from the U.S. Navy. At the time of my separation, I was informed by J_ L_, my Commanding Officer and the US Navy Legal Council that was provided to me, that I would receive an honorable discharge after six months, upon completion of this form. It is my intention to do so at this time.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copies of DD Form 214 (3)
Letter from Applicant dated May 14, 2004
Copies of Evaluation Report & Counseling Records (6 pages)
Copies of Adverse Performance Evaluation Report Letters (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     010821 - 010919  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 010920               Date of Discharge: 021115

 Length of Service (years, months, days):

         Active: 01 01 26
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

Education Level: 12                        AFQT: 51

 Highest Rate: AOAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (3)    Behavior: 1.33 (3)                OTA: 2.65

 Military Decorations: None

 Unit/Campaign/Service Awards: 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 :

020524:  NJP for violation of UCMJ, Article 92: Having knowledge of a lawful order issued by Commanding Officer, Electronic Attack Squadron 131 to obey all laws civilian and military governing alcohol use, an order which it was his duty to obey, did at VAQ-131 Naval Air Station Whidbey Island, on or about 020301, fail to obey the same by distributing alcohol to a minor; violation of UCMJ, Article 134: On or about 020403, as a result of wrongful previous overindulgence in intoxicating liquor or drugs incapacitated for the proper performance of his duties.
         Award: Forfeiture of ½ pay per month for 2 months (suspended for 6 months), restriction to VAQ-131 for 28 days, reduction to next inferior pay grade (suspended for 6 months). No indication of appeal in the record.
020704:  Retention Warning: Advised of deficiency (CO’s NJP of 020515 for violation of UCMJ, Article 86 (unauthorized absence for a period of 1.5 hours) and violation of UCMJ, Article 134 (wrongful previous overindulgence in intoxicating liquor or drugs, incapacitated for the proper performance of duties), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

021029:  NJP for violation of UCMJ, Article 92: Having knowledge of a lawful order issued by Commanding Officer, VAQ-131 not to provide alcohol to under-age service members, an order which it was his duty to obey, did at VAQ-131 Naval Air Station Whidbey Island, on or about 021005, fail to obey the same by providing alcohol to under-age service members.
         Award: Forfeiture of $550.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
021029:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.
021029:  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

Not found:       Commanding Officer directed discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.
         [Page one of CO’s letter missing from the service record.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021115 with a general (under 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. A characterization of service of under honorable conditions (general) 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. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable is inappropriate. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Additionally, 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. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge. 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), re-issued October 2002, effective 22 Aug 2002 until Present, 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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