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NAVY | DRB | 2004_Navy | ND04-00084
Original file (ND04-00084.rtf) Auto-classification: Denied


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

ex-AN, USN
Docket No. ND04-00084

Applicant’s Request
The application for discharge review was received on 20031017. 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 American Legion.

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

 1. “Equity Issue: Based on our review of evidentiary record, we request on behalf of this former member 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.

Review of the service record reflects that this Applicant maintained generally satisfactory performance and conduct markings and was issued a SSDR, AFEM. He had administrative counseling/warning on 001019 for VUCMJ, Arts. 86, 87,92 and was awarded NJP on 010920 for VUCMJ, Arts. 91, 92 (2 specs). Following due process notifications, he was discharged General (Under Honorable Conditions) due to a pattern of misconduct as authorized by NAVMILPERSMAN, Art. 1910-140.

This Applicant has not raised any contentions or issues on DD Form 293. He has submitted a reference letter attesting to his good post-service character for 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, and 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:
Character reference, dated March 27, 2003
Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     991230 - 000103  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 000104               Date of Discharge: 011002

 Length of Service (years, months, days):

         Active: 01 08 29         Does not exclude lost time
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

 Education Level: 10 GED           AFQT: 32

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (3)    Behavior: 2.00 (3)                OTA: 2.89

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, AFEM

 Days of Unauthorized Absence: 1

 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 :

001019:  NJP for violation of UCMJ, Article 86: Unauthorized absence 000807, violation of UCMJ, Article 87: Missing movement on 000807, violation of UCMJ, Article 92: Failure to obey order or regulations on 000807.
         Award: Forfeiture of ½ month pay for 2 months, restriction for 20 days. Forfeiture suspended for 6 months. No indication of appeal in the record.
001019:  Retention Warning: Advised of deficiency (Missing movement, absence without leave, failure to obey order or regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010731:  Applicant apprehended by civilian authorities in Virginia Beach on assault of a family member and obstruction of justice on 0300, 010731.

010731:  Applicant to unauthorized absence 0700, 010731.

010801:  Applicant from unauthorized absence 2000, 010801 (1 day/surrendered).

010920:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward Chief Petty Officer on 0730, 020920, to wit: disrespectful in language, and deportment toward ATC (AW/SW) by blatantly refusing to obey the orders, violation of UCMJ, Article 92 (2 specs): (1) Failure to obey lawful order from ATC (AW/SW) on 0730, 010920, to refusing to properly don his PPE, (2) Failure to obey lawful order from ATCS (AW) to utilize the vacuum to clean out pad eyes on 0930, 010920.
         Award: Extra duty for 45 days. No indication of appeal in the record.
010920:  Commanding Officer directed discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct within 10 days, authority: NAVMILPERSMAN, Article 1910-140.

 010924:  Applicant to unauthorized absence 0700-1530, 010924.

 010925:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.
010925:  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

011002:  Applicant discharged.
011120:  Commanding Officer informed CNMPC Applicant separated with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct on 011002, authority: NAVMILPERSMAN, Article 1910-140.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011002 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 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 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 the UCMJ, to include violations of Articles 86, 87, 91 and 92. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). However, there is no law or regulation, which provides that a discharge, may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural error or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The applicant provided one letter of recommendation as documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. For example, the applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service and certification of non-involvement with civil authorities in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided sufficient documentation of good character and conduct. Therefore, no relief will be granted. Relief 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 documentation to support any claims of post-service accomplishments or any other evidence related to his 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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