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NAVY | DRB | 2004_Navy | ND04-00736
Original file (ND04-00736.rtf) Auto-classification: Denied


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

ex-MS3, USNR(TAR)
Docket No. ND04-00736

Applicant’s Request
The application for discharge review was received on 20040401. 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 review was conducted in Washington, D.C. on 20041222. 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. “I am respectfully requesting an upgrade of my discharge status from general under honorable, to honorable. I am asking of this for two reasons. First being, serving my community as a police officer. Second, I wish to purchase a home for my family using my VA benefits. I proudly served my country in the Navy, and now I would like that opportunity for my community. The non judicial punishments on record, I believe are not of real importance. I dont want this to affect the rest of my life, being a general under honorable discharge. Please give this consideration I believe that there was a mistake on my DD-214 form. Main reason for my discharge, as stated in letter from the Commanding Officer U.S.S. Oliver Hazard Perry (FFG-7) to Chief of Naval Personnel (PERS-83), is reason of weight control failure. This is the first reason stated on all forms. And this is the reason, I was told, why I was being separated. On my DD-214, under section titled Narrative reason for separation, it says pattern of misconduct, which I believe is wrong. Also, in reference to statement made for my violation of Article 86, I was already on leave, and didn’t realize that my leave had expired one day shorter that my actual arrival. I called to get a one day extension on my leave, but it was denied.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Service Record Documents (3 pages)
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 880922               Date of Discharge: 960801

 Length of Service (years, months, days):

         Active: 07 04 25 (Does not exclude lost time)
         Inactive: 00 05 14

 Age at Entry: 18                          Years Contracted: 8 (40 months AD extension)

 Education Level: 12                        AFQT: 46

 Highest Rate: MS3/AD3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.68 (9)    Behavior: 3.62 (9)                OTA: 3.6

 Military Decorations: None

 Unit/Campaign/Service Awards: NER, MUC, CGUC (w/”O”), CGU, AFEM, HSM, NRSSR

 Days of Unauthorized Absence: 5

 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 :

890307:  Applicant ordered to active duty.

 901120:  Applicant awarded NJP for violations of UCMJ, Articles 86 and 92 [extracted from CO’s letter].
931221:  NJP for violation of UCMJ, Article 117: Provoking speeches or gestures, violation of UCMJ, Article 128: Assault.
         Award: Restriction and extra duty for 25 days, reduction to E-2 (reduction suspended 6 months). No indication of appeal in the record.
940805:  Applicant commences a period of unauthorized absence.

940809:  Applicant surrenders from unauthorized absence.
940811:  NJP for violation of UCMJ, Article 86: Absent without leave.
         Award: Forfeiture of $100.00 pay per month for 2 months, restriction and extra duty for 5 days. No indication of appeal in the record.
940929:  Applicant awarded NJP for a violation of UCMJ Article 92 [extracted from CO’s letter].
960415:  USS OLIVER HAZARD PERRY (FFG 7) notified Applicant of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of weight control failure, misconduct due to commission of a serious offense, and misconduct due to a pattern of misconduct .
960415:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.
Unknown:         An administrative discharge board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant did not meet physical readiness standards, had not committed a serious offense and had committed misconduct due to a pattern of misconduct. The Board further found that the misconduct warranted separation, and recommended discharge with a general (under honorable conditions).

960602:  Commanding Officer recommended discharge with a general (under honorable conditions) by reason of weight control failure, misconduct due to commission of a serious offense, and misconduct due to a pattern of misconduct.
960722:  BUPERS directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960801 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 case, 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: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. 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. A general 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 4 nonjudicial punishment proceedings for violations of Articles 86, 92, 117, and 128 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.

The Applicant contends that he was processed for separation as a result of weight control failure as opposed to misconduct due to pattern of misconduct. The record suggests that enough evidence existed to correctly “dual” process the Applicant for both weight control failure and pattern of misconduct as bases for separation. Furthermore, the record indicates the Applicant was properly notified of his separation processing for both weight control failure and pattern of misconduct, that an administrative discharge board found a preponderance of the evidence supported those reasons for separation, and that the Applicant should be separated as a result of those reasons for separation. Ultimately, the Narrative Reason for Separation listed on the Applicant’s DD Form 214 was pattern of misconduct. Although the Applicant might prefer the Narrative Reason to read “weight control failure,” there is nothing improper or inequitable with a Narrative Reason for Separation as “pattern of misconduct.” Relief denied.

 The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the 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, 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, 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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023


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