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NAVY | DRB | 2004_Navy | ND04-00056
Original file (ND04-00056.rtf) Auto-classification: Denied


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

ex-FR, USNR
Docket No. ND04-00056

Applicant’s Request
The application for discharge review was received on 20031006. 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 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: 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 am T_ S. P_ writing this on my behalf asking forgiviness for the immature way I presented my self 13 yrs ago. It was not a manly decision so on my behalf I want to apologize to the United States Navy and my Captain T_. I have since then learned how to present my self I am 31 yrs old now then I was 23 yrs old not a man at all. I have one son who I would like to show him how to be a man at an early age.”
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)     None
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 871117               Date of Discharge: 901108

 Length of Service (years, months, days):

         Active: 02 06 05
         Inactive: 00 02 21

 Age at Entry: 21                          Years Contracted: 8

 Education Level: 12                        AFQT: 30

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (1)    Behavior: 3.40 (1)                OTA: 3.32

 Military Decorations: None

 Unit/Campaign/Service Awards: NAVY”E”, SSDR

 Days of Unauthorized Absence: 25

 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 :

880208:  Ordered to active duty for 36 months under the Active Mariner program.
880629:  Retention Warning from [SSC, GLAKES, IL]: Advised of deficiency (Poor military performance by making a false official statement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880629:  NJP for violation of UCMJ, Article 107: False official statement.
Award: Forfeiture of $100.00 pay per month for 1 month, restriction to Bldg 334 SSC GLAKES, IL for 14 days, extra duty for 14 days. Punishment suspended for 6 months. No indication of appeal in the record.
881117:  Retention Warning from [TPU, NTC, Great Lakes, IL]: Advised of deficiency (Wrongfully in violation of Article 92 of UCMJ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

881117:  NJP for violation of UCMJ, Article 92: Fail to obey the same by wrongfully laying in rack with dungarees on during working hours.
         Award: Forfeiture of $100.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 5 days. No indication of appeal in the record.

881214:  Retention Warning from [USS FORRESTAL (CV-59)]: Advised of deficiency. You attended OIC’s NJP on 880629 for violation of UCMJ, Article 107, False official statement on 880606. You were awarded 14 days restriction and extra duties, FOP $100.00 for 1 month. All were suspended for 6 months. You attended CO’s NJP on 881117 for violation of UCMJ, Article 92: Failing to obey an order on 881104. You were awarded 5 days restriction and extra duties, FOP $100.00. FOP was suspended for 6 months. This incident was not alcohol related. Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900727:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86: Unauthorized absence from unit 900601-900626 (25 days/S). Charge II: violation of the UCMJ, Article 112a: Wrongful use of marijuana on or between 900502 and 900516. Charge III: violation of the UCMJ, Article 134: Break restriction on or about 900601.
         Findings: to Charge I and specification thereunder, guilty. To Charge II and specification thereunder, guilty. To Charge III and specification thereunder, guilty.
         Sentence: Confinement for 75 days, forfeiture of $200.00 pay per month for 2 months, reduction to E-1.
         CA 900917: Sentence approved and ordered executed.

900803:  Naval Air Station, Jacksonville notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by CO’s NJP on 880629 for violation of UCMJ, Article 107, and CO’s NJP on 881117 for violation of UCMJ, Article 92, misconduct due to drug abuse as evidenced by SPCM on 900727 for violation of UCMJ, Article 112a and misconduct due to a pattern of misconduct as evidenced by CO’s NJP on 880629, CO’s NJP on 881117 and SPCM on 900727.

900820:  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.

900907:  Medical evaluation found Applicant to be not physically or psychologically drug dependent

901026:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by CO’s NJP on 880629 for violation of UCMJ, Article 107, and CO’s NJP on 881117 for violation of UCMJ, Article 92, misconduct due to drug abuse as evidenced by SPCM on 900727 for violation of UCMJ, Article 112a and misconduct due to a pattern of misconduct as evidenced by CO’s NJP on 880629, CO’s NJP on 881117 and SPCM on 900727.

901102:  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 19901108 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. 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. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions, one special court-martial and adverse counseling entries on other 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 or under honorable (general) characterization of service. 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 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), 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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