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NAVY | DRB | 2004_Navy | ND04-00409
Original file (ND04-00409.rtf) Auto-classification: Denied


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


ex-EMFA, USN
Docket No. ND04-00409

Applicant’s Request
The application for discharge review was received on 20040114. 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 review was conducted in Washington, D.C. on 20040910. 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 was young man and I believe that I have became a better person. I have attended and finished college.
 I have become actively involved in my community. I am an Alumni member of Pi Lambda Phi fraternity which I have become actively involved with my fraternity & community. I believe that because of my years in the service I have become a better person.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890714 - 900710  COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 900711               Date of Discharge: 921117

 Length of Service (years, months, days):
         Active: 02 04 07         (Does not exclude lost time)
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 69
Highest Rate: EMFN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.10 (2)    Behavior: 3.30 (2)                OTA: 3.40

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, SSDR

 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 :

900717:  Retention Warning: Advised of deficiency (Non-swim qualified), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
900817:  Retention Warning: Advised of deficiency (4 th Class Swimmer qualified), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
910719:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0615, 910528 to 2130, 910715 (47 days/surrendered).
         Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 30 days, reduction to E-1. Reduction suspended for 6 months. No indication of appeal in the record.
920227:  NJP for violation of UCMJ, Article 117: Wrongful use of provoking words towards another shipmate on 920226.
         Award: Forfeiture of $440 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
920302:  Retention Warning from USS IWO JIMA (LPH 2): Advised of deficiency (Wrongful use of provoking words.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920520:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 920511 to 920513, violation of UCMJ, Article 87: Missing ship’s movement on 920512.
         Award: Forfeiture of $250 per month for 1 month, restriction and extra duty for 45 days, reduction to E-1. Reduction suspended for 6 months. No indication of appeal in the record.
921022:  NJP for violation of UCMJ, Article 91 (2 specs): (1) Disobeyed a lawful order from SCPO, (2) Disrespect toward a SCPO, violation of UCMJ, Article 86: Unauthorized absence on 921009, violation of UCMJ, Article 92: Derelict in performance of duties in participation of trash dumping.
         Award: Forfeiture of $250 per month for 2 months, restriction and extra duty for 40 days, reduction to E-2. No indication of appeal in the record.
921022:  USS IWO JIMA (LPH 2) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. [EXTRACTED FROM CO, USS IWO JIMA MESSAGE OF 28 OCT 92.]
921022:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation. [EXTRACTED FROM CO, USS IWO JIMA MESSAGE OF 28 OCT 92.]
921028:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
921101:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

 Complete Discharge Package Unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19921117 under other than honorable conditions for misconduct due to a pattern of misconduct (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While he may feel that his youth and immaturity were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service. His service record is marred by award of nonjudicial punishment (NJP) on four separate occasions thus substantiating the misconduct . Relief denied.
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. 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, effective 15 Aug 91 until
04 Mar 93), 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 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

 C. 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.
D. 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.

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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