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NAVY | DRB | 2004_Navy | ND04-00784
Original file (ND04-00784.rtf) Auto-classification: Denied


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

ex-RMSN, USN
Docket No. ND04-00784

Applicant’s Request
The application for discharge review was received on 20040414. The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requested a personal appearance discharge review before a traveling panel. The Applicant did not list a representative on his DD Form 293. Subsequently, the Applicant obtained representation from the American Legion. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. area.

Decision

A personal appearance review was conducted in Washington, D.C. on 20050317. 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 4 to 1 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.
If appropriate add the following:
 The NDRB did note administrative error(s) on the original DD Form 214. Block 18, Remarks, should contain the following statement: "CONTINUOUS HONORABLE ACTIVE DUTY FROM XXXXXX UNTIL XXXXXX," and Block 28, Narrative Reason for Separation, should read: "_____________________" vice "___________________." The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.






SPN CODE HKA
THIS IS THE CORRECT SHELL FOR Misconduct - Pattern of Misconduct. 910815 - 930304 ONLY.

 THE FINDING FOR MISCONDUCT, (3630600) EFFECTIVE 910815 – 930304 ONLY. THE SPN CODE IS EFFECTIVE 860911 – 930627.
A general discharge is written UNDER HONORABLE CONDITIONS (GENERAL).



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

1. “(Equity Issue) This former member opines that marital problems contributed to and sufficiently mitigated his misconduct of record to warrant the Board’s relief.

2. (Equity Issue) This former member requests that the Board consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application.
The American Legion’s express purpose in providing this statement, and any other submittals or evidence filed, is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Issue submitted by Applicant’s counsel supersedes DD Form filed 20040414.

Additional issues submitted by Applicant’s counsel/representative ( VETERANS OF FOREIGN WARS, DISABLED AMERICAN VETERANS, AMERICAN LEGION , PRIVATE REPRESENTATIVE, CIVILIAN COUNSEL ):

“1. XXXXXXXXXXXXXXXXXXXXX.”

 Issues submitted by Applicant’s counsel/representative ( VETERANS OF FOREIGN WARS, DISABLED AMERICAN VETERANS, AMERICAN LEGION, PRIVATE REPRESENTATIVE, CIVILIAN COUNSEL ):
“1.XXXXXXXXXXXXXXXXXXXXXX.”

Submitted by Applicant subsequent to submission of application:

“1. XXXXXXXXXXXXXXXXXXXXXXXX.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
City Count Bureau of Identification records check, dtd March 1, 2005
Character reference from Y_ G_, dtd December 1, 2004
Character reference from R_ K_, dtd February 21, 2005
Character reference from G_ W_, dtd March 2, 2005
Character reference from J_ L. B_, dtd March 2, 2005
Applicant’s DD Form 214
Civil Court Documents (3 pages)
Applicant’s letter to the Board, dtd May 11, 2004
Character reference from F_ B. M_, undated
Character reference from S_ A. B_, undated
Ltr of Appreciation from T_ B_, undated
Instructor Certification, dtd March 30, 2002
Certificate of Completion, dtd November 7, 2003
Certificate of Completion, dtd November 7, 2003
Instructor Certification, dtd March 30, 2002
Letter from Applicant, undated (3 pages)
Letter from Applicant, dtd October 24, 2004 (2 pages)
Personnel Action report, dtd March 27, 2003
Certificate of Completion, dtd May 30, 2002
Certificate of Completion, dtd August 6, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890130            COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 890131               Date of Discharge: 921015

 Length of Service (years, months, days):

         Active: 03 08 15 (Does not exclude lost time.)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 29

 Highest Rate: RM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (3)             Behavior: 3.55 (4)                OTA: 3.73

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 9

 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 :

890131:  Applicant briefed upon and certified understanding of Navy policy concerning alcohol and illegal use of drugs.

890206:  Retention Warning from Recruit Training Command, Naval Training Center, Great Lakes, IL: Advised of deficiency (Non swim qualified), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910319:  Retention Warning from Naval Communication Area Master Station LANT: Advised of deficiency (Failure to pay just debts as evidenced by the numerous letters of indebtedness received by this command, and the writing of worthless checks and financial irresponsibility in satisfying your just debts), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

911020:  Civil Conviction: Juvenile and Domestic Relations Court for violation of assault and battery (wife) on 911020.
 Sentence: Jail for 90 days, unsupervised probation for 1 year, complete Navy Family Advocacy Program. Jail for 70 days suspended.
911021:  Applicant to unauthorized absence 0730, 911021.

911030:  Applicant from unauthorized absence 1515, 911030 (9 days/surrendered).

 911122:  NJP for violation of UCMJ, Article 107: False official statement on 910819, to wit: that he was taking his baby to Portsmouth Naval hospital, which statement was false in that his wife called to say he had abandoned her and the baby in Washington, D.C., violation Article 86: Unauthorized absence from 0730, 911021 to 1515, 911030.
 Award: Restriction for 30 days, reduction to E-3. No indication of appeal in the record.
920812:  Commanding Officer, Naval Computer and Telecommunications Area Master Station LANT notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by an established pattern of failure to pay just debts.
920812:  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.
920826:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Commanding Officer’s comments: “This command has received numerous letters of indebtedness for nonpayment of debts on RMSN W_ (Applicant) beginning in July 1990. He has been counseled informally and formally concerning his financial responsibility to no avail. A financial workup was completed on 31 July 1991, and a Page 13 warning was issued on 19 March 91. Since that time, this command has continued to receive letters of indebtedness on RMSN W_ (Applicant). This command has tried to help RMSN W_ (Applicant) take care of his financial obligations, however, he is either incapable or unwilling to adhere to guidelines established to get him back on track financially. A second financial workup was completed 01 April 1992. During his interview he lied about several outstanding debts; therefore, the financial workup was incomplete. RMSN W_ (Applicant) has been a tremendous burden to this command, not only on financial issues, but also with family issues as well. RMSN W_’s (Applicant’s) conduct falls within the parameters of references MILPERSMAN 3630600 and MILPERSMAN 3630620 and discharge is warranted. I recommend that RMSN W_ (Applicant) be separated from the Naval Service with an Other Than Honorable discharge.”

920924:  Commanding Officer, Naval Computer and Telecommunications Area Master Station LANT notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse.
920924:  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 .
920928:  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 19921015 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: The Applicant contends his disciplinary problems were the result of marital problems. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. 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) for violations of UCMJ Articles 86 (Unauthorized absence), and Article 107 (False official statement). Additionally, the Applicant received a civil conviction for assault and battery. 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.
Issue 2: 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. The board commends the Applicant in his employment accomplishments. However, t he Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge. Relief denied.

The following if provided for the edification of the Applicant. The NDRB has no authority to provided additional review of this case. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, to honorable, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C, effective 15 Aug 91 until
04 Mar 93), 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 II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

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

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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