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NAVY | DRB | 2004_Navy | ND04-00666
Original file (ND04-00666.rtf) Auto-classification: Denied


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

ex-ICFN, USN
Docket No. ND04-00666

Applicant’s Request
The application for discharge review was received on 20040315. 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 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: UNDER OTHER THAN 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:

“I Feel that I was treated unfairly at the time of my discharge. I enclose a letter with the issue that apply to my case and a statement that tells what happened to me and why I am pursing an honorable discharge.

 Dear DRB:

The following issues are the reasons I believe my discharge should be upgraded to Honorable. If you disagree, please explain in detail why you disagree. The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.

1. Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.

2. Under current standards, I would not receive the type of discharge I did.

3. My average conduct and efficiency ratings/behavior and proficiency marks were good.

4. I received awards and decorations.

5. I received letters of recommendation.

6. I had combat service.

7. My record of promotions showed I was generally a good service member.

8. There were other acts of merit.

9. I was so close to finishing my tour that it was unfair to give me a bad discharge.

10. I had a prior honorable discharge.

11. I have been a good citizen since discharge.

12. My record of NJPs/Article 15s indicates only isolated or minor offenses.

13. Personal problems impaired my ability to serve.

14. I had tried to apply for a hardship discharge but was unfairly told to forget it.

15. I had applied or tried to apply for a compassionate reassignment but was unfairly denied or told to forget it.

I also submit the enclosed statement that outlines just what happened and how wrong everything went. I am truly a good human being. I feel great pain and humiliation over what happened. I think that I was treated unfairly by the CO of RTC in Orlando, Florida because he did not discharge me based on the infraction but because I submitted a chit to be released from active duty due to terminal illness in my family and I submit evidence of this.

In addition other substantiating/supporting documentation is submitted for your review. Please help me to get my life back on track.”

Sincerely,

T_ L_ H_ ( Applicant )
(Social security number deleted)
DOB:     3/4/65

( Applicant 's address deleted)
( Applicant 's telephone number deleted)

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (Service 2)
Statement of Support (5 pages)
Letter of Reference from W_ P_ T_, dated June 5, 2003
Letter of Reference from, F_ B_, HR Rep. TeSeCon Inc., undated
Letter of Concerns from L_ E_ M_, MSW, CSW, Clinical Social Worker, Biloxi Vet Center, dated February 5, 2004
Letter of Reference from Father H_ E_ D_, SSG, dated June 9, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     871008 - 880202  COG
         Active: USN                        880203 - 920218  HON

 Period of Service Under Review :
Date of Enlistment: 920219               Date of Discharge: 950224

 Length of Service (years, months, days):

         Active: 03 00 06
         Inactive: None

 Age at Entry: 27                          Years Contracted: 4

Education Level: 14                        AFQT: 44

 Highest Rate: IC3

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR 2 ND AWARD, NER

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

920219:  Reenlisted for 4 years.

 921130:  Applicant on unauthorized absence, intentions unknown.

921207:  Applicant returned from unauthorized absence on this date.

940512:  NJP for violation of UCMJ, Article 89: Disrespect towards a superior commissioned officer; violation of UCMJ, Article 134 (2 Specs): Misuse of government property.
         Award: Forfeiture of $619.00 pay per month for 2 months, restriction and extra duty for 45 days (suspended), reduction to E-3. No indication of appeal in the record.
940922:  NJP for violation of UCMJ, Article 92 (3 specs): Violating or failing to obey any lawful general order or regulation.
         Specification 1: Violated a lawful general regulation on 920110, by wrongfully fraternizing with a FR by socializing and forming an unduly familiar relationship with the said FR.
         Specification 2: Violated a lawful general regulation on 920505, by wrongfully providing alcoholic beverages to a FR, a person under the age of 21.
         Specification 3: Violated a lawful general regulation on 920505, by wrongfully providing alcoholic beverages to an YN3, a person under the age of 21.
         Award: Forfeiture of $200.00 per month for 2 months, restriction and extra duty for 15 days, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.

940922:  Retention Warning from Recruit Training Command: Advised of deficiency (Violation of the UCMJ, Article 92; Failure to obey a lawful written order/regulation), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

941107:  CO’s NJP (940922) reduction to next inferior pay grade of E-3 vacated due to continued misconduct.
941109:  NJP for violation of UCMJ, Article 92: Violated a lawful general regulation to wit: Art 1159, U.S. Navy regulations, dated 90SEP14, by wrongfully possessing in his BEQ room at NTC, Orlando, FL a loaded 9mm hand gun.
         Award: Forfeiture of $200.00 per month for 2 months (suspended $200.00 a month for 6 months), restriction and extra duty for 30 days (suspended for 6 months), reduction to E-2 (suspended for 6 months). No indication of appeal in the record.
941228:  Recruit Training Command, Orlando notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of serious offenses and misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment.
950109:  Applicant advised of rights and having elected to consult 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. Applicant did not object to this separation.
950110:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of serious offenses and misconduct due to a pattern of misconduct. Commanding Officer’s comments: FN H_ (Applicant) has been a continued burden to the command, within a 6 month period he has been disciplined at three NJP’s. He understands the difference between right and wrong, yet he continues to disregard the policies of the Navy. His behavior is unacceptable and will not be tolerated. I most strongly recommend that Fireman H_ (Applicant) be discharged from the Navy with an Under Other Than Honorable discharge.

950214:  BUPERS directed the Applicant's discharge under other than honorable conditions 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 19950224 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).

Issues 1-10, 12: 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 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. An upgrade to honorable would be inappropriate. It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges. In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. Relief denied.

Issue 11: 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. Relief denied.

Issue 13: The Applicant contends that his problems in the Navy can be attributed to his "personal problems". While he may feel that his personal problems impaired his ability to serve, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief on this basis is denied.

Issues 14-15: There is no evidence in the Applicant’s record that he applied for a hardship or compassionate reassignment. 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, Change 9, effective
22 Jul 94 until 02 Oct 96), 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 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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