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NAVY | DRB | 2004_Navy | ND04-00580
Original file (ND04-00580.rtf) Auto-classification: Denied


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

ex-RMSA, USN
Docket No. ND04-00580

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 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 20041112. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “To further my education and to get assistance from my G.I. Bill. I am currently enrolled at State Fair Community College.”
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)     920923 - 930726  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 930727               Date of Discharge: 961101

 Length of Service (years, months, days):

         Active: 03 03 04
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 37

 Highest Rate: RM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (3)    Behavior: 3.53 (3)                OTA: 3.73

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, BATTLE”E”(2), SSDR, AFEM

 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 3630600.

 Chronological Listing of Significant Service Events :

Undated:         Retention Warning: Advised of deficiency (Your immaturity, moodiness, are inconsistent with the maintenance of good order and discipline of military life. Additionally, your marked ambivalence about being in the service and your confusion about the morality of military service, coupled with your difficulty in making everyday decisions and important life decisions is not conducive to satisfactory military service. You received counseling by your chain of command, both verbally and in writing about your inability to report to work on time. Counseling and extra military instructions has not produced positive results), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940603:  Retention Warning: Advised of deficiency (Failure to exercise fiscal responsibility as evidenced by notice of indebtedness from NEXCOM), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940912:  Unauthorized absence from USS JOHN RODGERS 1020-1245, 940912 (2hrs/25mins/S).

940929:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of ½ pay per month for 2 months (suspended for 6 months), restriction for 60 days, reduction in rate (suspended for 6 months). No indication of appeal in the record.

951010:  Retention Warning: Advised of deficiency (Your conduct has been unsatisfactory. You have been informally counseled for failure to pay just debts and/or making checks with insufficient funds. You continue to accumulate debts without the ability to repay them. This behavior is in violation of the UCMJ and cannot be tolerated. You must make every effort to rectify this situation of your creditors and this command), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960613:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 86-Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960613:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of ½ pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days (suspend 20 days for 6 months), reduction to E-2 (suspended for 6 months); remove frocking. No indication of appeal in the record.
960829:  Punishment of RIR to RMSA and forfeiture of $490.00 pay per month for 2 months suspended at CO’s NJP on 960613 vacated this date due to continued misconduct.

 960829:  NJP for violation of UCMJ, Article 107: False statements; violation of UCMJ, Article 109: Destroying or damage to non-military property; violation of UCMJ, Article 134: False swearing.
         Award: Forfeiture of ½ pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
961101:  Applicant's discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct per MILPERSMAN 3630600.

 PARTIAL DISCHARGE PACKAGE

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19961101 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: Characterization of service as 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. The Applicant’s service was marred by the award of nonjudicial punishment (NJP) on three occasions for violating the UCMJ, Articles 86, 107, 109 and 134 and suspended punishment vacated due to continued misconduct. The Applicant’s summary of service clearly reflects 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. An upgrade to honorable conditions would be inappropriate. Relief denied.

 The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB). There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.

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 verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.

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 14, effective 03 Oct 96 until 11 Dec 97), 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 9.3, EQUITY 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 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 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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