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NAVY | DRB | 2004_Navy | ND04-00240
Original file (ND04-00240.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND04-00240

Applicant’s Request
The application for discharge review was received on 20031125. 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040728. 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/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. “I was told by the legal officer, when discharged that I could upgrade it to general/under honorable conditions after 6 months of discharge. I would like it upgraded for more job opportunities”.
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)     010919 - 011217  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 011218               Date of Discharge: 021205

 Length of Service (years, months, days):

         Active: 00 11 04
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 88

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*                 Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 14

*No Marks made available for review

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

020718:  Retention Warning: Advised of deficiency (Commanding Officer’s NJP imposed on 020718, violation of the UCMJ, Article 92 (failure to obey lawful order) (operating a vehicle during phase I NMT & parking in staff parking) and violation of the UCMJ, Article 107 (false official statement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020718:  NJP for violation of UCMJ, Article 92: (2 Specifications), Specification 1: On or about 020712 fail to obey NNPTCINST 3120.1 DTD 000428 by operating a vehicle during phase 1, Specification 2: On or about 020712 fail to obey NNPTCINST 3120.1 by parking in the staff parking lot, violation of UCMJ Article 107: On or about 020712 make to ETC F___ USN an official statement “FN D__ borrowed-“which was totally false.
Award: Oral Admonition, forfeiture of $150.00 pay per month for 2 months, restriction for 30 days, reduction to E-2. No indication of appeal in the record.
020808:  NJP for violation of UCMJ, Article 86: (4 Specifications), failed to go at the time prescribed to his appointed place of duty to wit: restricted muster.
Award: Oral Admonition, forfeiture of $150.00 pay per month for 2 months, restriction for 30 days, reduction to E-1. No indication of appeal in the record.
021010:  NJP for violation of UCMJ, Article 134: On or about 01-03 September 02 wrongfully posses a New Jersey Driver’s License, violation of UCMJ, Article 86: On or about 021008 unauthorized absence from NNPTC 0645-0830.
         Award: Oral Admonition, forfeiture of $200.00 pay per month for 2 months, Correctional Custody Unit for 30 day. No indication of appeal in the record.

021121:  NJP for violation of UCMJ, Article 86: Did on or about 0730, 021118, absent himself from NNPTC until 2335, 021118.
         Award: Oral Admonition, forfeiture of $200.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
021121:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
021121:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
021121:  UA from NNPTC CHASN since 1835, 021121. Intention unknown.

 021126:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

021203:  Commander, Navy Region Southeast authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

021205:  Applicant discharged in absentia per COMNAVREG SE letter SER N02L1B/1077 of 021203.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia 20021205 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. The Applicant states that he was told that after six months he could have his discharge upgraded. There is no law or regulation that authorizes a discharge to be automatically upgraded after six months. A former service member has 15 years, from the date of discharge, to petition the board for consideration of an upgrade. The Board does not automatically upgrade a discharge after six months. Relief denied.

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. The Applicant’s service was marred by award of nonjudicial punishment (NJP) on four occasions, which included violations of articles 86, 92, and 134 of the UCMJ. 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 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 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), 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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