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NAVY | DRB | 2004_Navy | ND04-00420
Original file (ND04-00420.rtf) Auto-classification: Denied


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

ex-YN3, USN
Docket No. ND04-00420

Applicant’s Request
The application for discharge review was received on 20040112. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041015. 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. “My request for an upgrade is requested because of the unfairness of my CMC personal dislike of me. I also have a copy of my request sheet for a one year extension in the Navy from my chain of command. I was charge with article 86 in which was my first going to mast and then I was discharged with a general/under honorable conditions.”

 Documentation
In addition to the service record, NO DISCHARGE PACKAGE AVAILABLE, the following additional documentation, submitted by the Applicant, was considered:
Copy of Evaluation Report & Counseling Record
Copy of DD From 214
Copy of Command Investigation Letter dated January 22, 2003 (2 pages)
Copy of Extension Request Chit
Copy of Charge Sheet
Copy of Notification and Election of Rights (2 pages)
Copy of Applicant’s Voluntary Statement dated January 15, 2003
Copies of Waiver of Rights (2)
Copy of Evaluation Report & Counseling Record (3 pages)
Copy of Command’s Investigation Letter dated January 15, 2003
Copy of Voluntary Statement from J_ P. H_ dated March 5, 2003
Copy of Voluntary Statement from J_ P. H_ dated January 22, 2003
Copy of Applicant’s Voluntary Statement dated March 18, 2003
 Copy of Voluntary Statement from G_ N. B_ dated January 22, 2003
Copy of Driver’s History Record
Copy of Extension Request Chit

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     970908 - 970929  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 970930               Date of Discharge: 030404

 Length of Service (years, months, days):

         Active: 05 06 05
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4 (19 months extension)

 Education Level: 12                        AFQT: 31

 Highest Rate: YN3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.50 (2)    Behavior: 3.50 (2)                OTA: 3.17

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, GCA, SWSP, EASWSP, BATTLE”E” (2), SSDR, AFEM, LOC, MAAB(silver)

 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 :

020717:  Retention Warning: Advised of deficiency (Conviction in Civil District Court for driving under the influence (DUI) of alcohol and below average grades (Quality of Work and Personal Job Accomplishment) on annual performance evaluation, dated 010616 through 020615), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020812:  Retention Warning: Advised of deficiency (Eviction from Bachelor Enlistment Quarters after failing your most recent room inspection on 020808, after being verbally counseled for a previous failure and informed of the consequences if you failed another inspection), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

021230:  Applicant to unauthorized absence [Extracted from supplemental documents provided by Applicant].

021231:  Applicant returned from unauthorized absence [Extracted from supplemental documents provided by Applicant].
030401:  Chief, BUMED authorized the Applicant's discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct [Extracted from case file].
         
030404:  Applicant discharged general (under honorable conditions) by reason of misconduct due to a pattern of misconduct per MILPERSMAN 1910-400 [Extracted from DD Form 214].

NO DISCHARGE PACKAGE AVAILABLE

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030404 with a general (under 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. 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. The Applicant’s service was marred by award of a civil conviction for DUI, unauthorized absence, and two retention warnings. 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.

There is no evidence in the official record, nor did the Applicant provide any certifiable documentation, that supports his assertion that his Command Master Chief subjected him to “unfair treatment”. Accordingly relief on this issue is denied.

The following is provided for the edification of the Applicant. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.

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), 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 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      



BOARD MEMBERS RECORD OF VOTE
______________________________________________________________________________
NAME                       CHARACTER OF SERVICE     REASON FOR DISCHARGE
 ______________________________________________________________________________
T.B. GALVIN, COL, USMC   NO CHANGE                                   NO CHANGE
Presiding Officer
 
W.E. BRIGGS, LTCOL, USMC         NO CHANGE                                   NO CHANGE
Member

A. KOLKMEYER, LTCOL, USMC        NO CHANGE                                  NO CHANGE
Member

J. KOSKY, JAG, LT, USN            NO CHANGE                                  NO CHANGE
Member

 M. CUNNINGHAM, LT, USNR  NO CHANGE                                   NO CHANGE
 Recorder



 Recorder’s Signature:_____________________________________________


Presiding Officer’s Signature:_______________________________________


. 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, states:
Responsible
Office		 NAVPERSCOM
(PERS-832)		 Phone: DSN
COM
FAX		 882-4438
(901) 874-4438
882-2624
________________________________________________________________________
Governing
Directive		 NAVPERS 15560C, Naval Military Personnel Manual
________________________________________________________________________

 1. Policy
a. Members may be separated when during the current enlistment they have
(1) two or more non-judicial punishments, court-martial, or civil convictions (or combination thereof);
(2) three or more unauthorized absences, each is more than 3 days, but less than 30 days duration;
(3) a set pattern of failure to pay just debts; or
(4) a set pattern of failure to contribute adequate support to dependents or failure to comply with civil court orders, decrees, or judgments concerning dependent support; and
(5) violated a NAVPERS 1070/613, Administrative Remarks counseling/warning (MILPERSMAN 1910-204) specifically addressing the non-support.

b. A member must have violated a NAVPERS 1070/613 warning prior to processing. A counseling and warning is legally binding on the Navy. The typical correct sequence is NJP - NAVPERS 1070/613 - NJP. There is no requirement for a commanding officer to award a NAVPERS 1070/613 following NJP. That decision should be based on the circumstances of the situation. A common error occurs when commands issue a NAVPERS 1070/613 warning following the second NJP. In these instances, the member is essentially being given another opportunity by the commanding officer to correct the deficiency and processing for pattern of misconduct in inappropriate. Another common error is initiating processing for pattern of misconduct without a NAVPERS 1070/613 warning.
c. All offenses processed or considered under Pattern of Misconduct must have occurred in the current enlistment.
 ________________________________________________________________________

 2. Procedures . Use this table to determine processing procedures.
WHEN... THEN use...
one of the offenses requires mandatory processing or the commanding officer believes the circumstances surrounding the offense warrant OTH per MILPERSMAN 1910-300, Administrative Board Procedures (MILPERSMAN 1910-404)
the commanding officer believes that the circumstances surrounding the offense do not warrant an OTH, Notification Procedures (MILPERSMAN 1910-402)

3. Characterization of Separation .

a. Further guidance on characterization of service is provided in MILPERSMAN 1910-300. This table provides general information based on type of procedures used.
IF... THEN the least favorable
characterization...
the Notification Procedure is used, is GEN per MILPERSMAN 1910-300
the Administrative Board Procedure is used, is OTH per MILPERSMAN 1910-300

b. If the member has less than 180 days of service an Entry Level Separation may be appropriate. See MILPERSMAN 1910-308 for further guidance.

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