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NAVY | DRB | 2004_Navy | ND04-00566
Original file (ND04-00566.rtf) Auto-classification: Denied


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

ex-AOAA, USN
Docket No. ND04-00566

Applicant’s Request
The application for discharge review was received on 20040224. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 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 20041001. 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. “Because I have been a hard working civilian and I am trying to finish college so I can take my career to the next level.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Letter from Applicant
Admission documents from University of Houston-Downtown (3 pp.)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     961123 - 970908  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 970909               Date of Discharge: 000929

 Length of Service (years, months, days):

         Active: 03 00 21 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 48

 Highest Rate: AOAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.66 (3)    Behavior: 2.33 (3)                OTA: 2.61

 Military Decorations: None

 Unit/Campaign/Service Awards: NUC, SSDR(2), AFEM, LoC

 Days of Unauthorized Absence: 4

 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 :

980606:  To UA.

980610:  From UA, to duty.

 980713:  NJP for violation of UCMJ, Article 86: UA.
         Award: Forfeiture of $300 per month for 2 months, restriction for 45 days. No indication of appeal in the record.
980713:  Retention Warning: Advised of deficiency (found guilty at NJP for UA), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

981021:  Failed PRT.

990311:  Failed PRT for second time in a 4 year period.

990420:  Retention Warning: Advised of deficiency (failure to obey lawful order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990415:  NJP for violation of UCMJ, Article 92, disobey a lawful order on 990329.
         Award: Forfeiture of one-half month’s pay for 2 months, reduction to next inferior pay grade, and restriction for 60 days (all suspended for 6 months).
991230:  NJP for violation of UCMJ, Article 91: Insubordinate towards a Petty Officer on 991202.
Award: Correctional custody for 30 days. No indication of appeal in the record.
000911:  Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of misconduct due to a pattern of misconduct and due to the commission of a serious offense.
000911:  Applicant advised of rights and having consulted 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.

000911:  Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to a pattern of misconduct and due to the commission of a serious offense.

000922:  CNMPC directed the Applicant's discharge under honorable conditions (general) 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 20000929 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. A characterization of service of general (under honorable conditions) 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. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on three 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 characterization of service. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety occurred 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. 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. Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge. 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 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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