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NAVY | DRB | 2004_Navy | ND04-00734
Original file (ND04-00734.rtf) Auto-classification: Denied


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


ex-SR, USN
Docket No. ND04-00734

Applicant’s Request
The application for discharge review was received on 20040405. 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 listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20041008. 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. “Having had Captains Mast I was asked if I wanted out of the Navy and I said yes. This was not knowing the maginatude of not having a discharge that was Honorable. I realize I may not be eligible for a Honorable Discharge but feel a discharge at least under Honorable Conditions is warranted.
 I did spend 2 yrs in the service and hope my actions were for the best.
 Since leaving the service I have married, have 2 children & have held my job since. I have had no trouble with the law, pay my taxes & try to make a home for my family.
 On my AW I was 2 days late as I took a bus back to ship, I was out of range on my pass.
 On the sleeping on watch, it was shown I was not asleep but was told I was out of station.
I ask the Board to consider an upgrade of my discharge.”
Additional issues submitted by Applicant’s counsel/representative (Disabled American Veterans):
2. “Dear Chairperson:

 After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable (OTH) discharge to that of General Under Honorable Conditions.

The FSM served on active service from May 30, 1989 to March 7, 1991 at which time he was discharged due to Misconduct-Pattern of Misconduct.

The FSM explains on his application that he did not understand the implication of being given an early discharge when asked if he wanted out of the Navy. He explains the absence with out leave occurred when he tried to return from leave by bus and it took two days longer than expected. On the issue of sleeping on watch, he states that it was shown he was not asleep on watch but out of station. He request the Board review the content of his two years of good service and provide equitable relief in the form of the requested upgrade, with consideration of his good character since discharge.

The FSM asks that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

 In the course of the review of this application for discharge upgrade, we have determined that a change is warranted based on consideration of the Applicant’s military record and other evidence viewed, even though the discharge was determine to be equitable and proper at the time of issuance. This to include all areas o consideration as outlined in 32 CFR 724.903.
We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890524 - 890529  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 890530               Date of Discharge: 910307

 Length of Service (years, months, days):
         Active: 01 09 08         Does not exclude lost time
          Inactive: None
Age at Entry: 19                          Years Contracted: 4
Education Level: 11 GED           AFQT: 54/53

 Highest Rate: SA
Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.30 (2)    Behavior: 2.00 (2)                OTA: 2.60

 Military Decorations: None
Unit/Campaign/Service Awards: SSDR, BER, USCG Special Operations Service Ribbon, HSM

 Days of Unauthorized Absence: 2
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 :

890601:  Applicant briefed on Navy's policy of drug and alcohol abuse.
900201:  NJP for violation of UCMJ, Article 92: Dereliction of duty on 900119.
         Award: Forfeiture of $362 per month for 1 month, restriction for 45 days. No indication of appeal in the record.
900201:  Retention Warning from USS THORN (DD 988): Advised of deficiency (Substandard military conduct with regard to accepting and carrying out directives issued to you by your Leading Chief Petty Officer, Division Officer, and Department Head. Substandard performance in following orders and regulations: Unauthorized absence, lateness, inability to be reliably at assigned place of duty and/or alcohol abuse.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910119:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 910107-910109.
         Award: Forfeiture of $422 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
910129:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 92 (2 specs): (1) Fail to obey order, (2) Dereliction of duty.
         Award: Dismissed Article 86. Forfeiture of $375 per month for 2 month(s), restriction and extra duty for 45 days. No indication of appeal in the record.
910205:  USS THORN (DD-988) notified Applicant of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by Commanding Officer’s nonjudicial punishment of 900201, violation Uniform Code of Military Justice Article 92: Dereliction of duty, Commanding Officer’s nonjudicial punishment of 910119, violation Uniform Code of Military Justice Article 86: Unauthorized absence; Commanding Officer’s nonjudicial punishment of 910129 violation Uniform Code of Military Justice Article 92 (2 specifications); Failure to obey a lawful order, dereliction of duty.
910207:  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. Applicant did not object to the separation.
910209:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
910228:  CNMPC 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 19910307 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).
Issue 1: Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety or inequity after a review of Applicant’s case. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An under other than honorable conditions discharge 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 three nonjudicial punishment proceedings for violations of Articles 86 and 92 of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

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. As of this time, the Applicant has not provided any documentation for the Board to consider. 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 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), 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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