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NAVY | DRB | 2004_Navy | ND04-00838
Original file (ND04-00838.rtf) Auto-classification: Denied


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

ex-SR, USNR
Docket No. ND04-00838

Applicant’s Request
The application for discharge review was received on 20040429. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a documentary record review. The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041029. 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, authority: NAVMILPERSMAN, Article 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “I believe this discharge to be improper because my enlistment was initially a 2 year active duty contract, which I completed honorably. The following one (1) year, ten (10) months were spent applying and reapplying for Hospital Corpsman Class “A” school. This opportunity was afforded to me by way of two (2) separate one (1) year extensions. My first extension was also completed honorably. The second extension of my two year enlistment saw me thru substantial marital problems resulting in divorce, a second rejection from the Bureau of Personnel (code 291) of my request for Hospital Corpsman Class “A” School, and serious financial difficulties in the last quarter of my 4 th year of enlistment I was awarded a 3 RD NJP and discharged 2 months prior to my EAOS. Attached, are letters of Appreciation and Recommendation that reflect my ongoing dedication to my command and the Navy in the course of my enlistment. I hope this will influence your decision regarding my request for a discharge upgrade.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of Letter of Recommendation dated December 5, 1995
Copy of Letter of Recommendation dated November 27, 1995
Copy in Letter of Support dated July 25, 1995
Copy of Letter of Appreciation dated October 17, 1994

PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 930430               Date of Discharge: 970512

 Length of Service (years, months, days):

         Active: 03 09 29 (Accounts for lost time)
         Inactive: 00 02 08

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 12 (GED)                          AFQT: 75

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.70 (2)    Behavior: 3.70 (2)                OTA: 3.70 (4.0 scale)
                  2.00 (1)                 1.00 (1)                          1.83 (5.0 scale)

 Military Decorations: None

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

 Days of Unauthorized Absence: 7

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

 Chronological Listing of Significant Service Events :

930707:  Commenced 2 years of active duty under the Seaman Apprenticeship program.


930909:  You are being retained in the Naval Service, despite your defective enlistment and induction due to fraudulent entry into the Naval Service as evidenced by your failure to disclose your pre-service involvement with civil authorities and/or illegal drugs consisting of the following:
         -Failure to show proof of fine August 1992 in Portland, OR. $43.00 fine paid.

940228:  Retention Warning: Advised of deficiency (Repeated violations of UCMJ Article 86 (unauthorized absence) resulting in non-judicial punishment), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940228:  NJP for violation of UCMJ, Article 86: Absence from unit, organization, or place of duty.
         Award: Forfeiture of $100.00 pay per month for 1 month, restriction to the ship and extra duty for 14 days. No indication of appeal in the record.

940810:  NJP for violation of UCMJ, Article 117: Disrespectful to a Senior Petty Officer.
         Award: Forfeiture of $150.00 pay per month for 1 month, restriction and extra duty for 45 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.

950503:  Extended enlistment for 12 months. [Extracted from DD 214.]
960429:  Extended enlistment for 12 months. [Extracted from DD 214.]
960823:  NJP for violation of UCMJ, Article 90: (No further information found in service record), violation of UCMJ, Article 92: (No further information found in service record).
         Award: Forfeiture of $490.00 pay per month for 2 months, restriction to the ship for 45 days, extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

9703XX   DUI … BAC 1.54. [Extracted from medical records.]

970403:  NJP for violation of UCMJ, Article 86 (4 Specifications), (7 days, no further information found in service record; violation of UCMJ, Article 92 (5 Specifications), (no further information found in service record); violation of UCMJ, Article 111 (2 Specifications), (no further information found in service record); violation of UCMJ, Article 121: (no further information found in service record).
         Award: Forfeiture of ½ pay per month for 2 months (suspended), restriction to the USS WILLAMETTE and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
970414:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense as evidenced by CO’s NJP of 940228 for violation of UCMJ, Article 86, 940810 for violation of UCMJ, Article 117, 960823 for violation of UCMJ, Article 90 and 92, and 970403 for violation of UCMJ, Article 86 (4 specifications), 92 (5 specifications) and 111 (2 specifications).
970423:  Applicant advised of his rights and having elected not 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.
970502:  Applicant medically evaluated as alcohol dependent but declined treatment. [Extracted from CO’s comments and medical records.]
970505:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.

970509:  Commander, Naval Surface Group, Middle Pacific authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970512 under other than honorable conditions for misconduct due to commission of a serious offense (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, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While he may feel his enlistment was honorable, the record does not support this contention. His service record is marred by awarding of nonjudicial punishment (NJP) on four separate occasions; thereby, substantiating the misconduct for which he was separated from the Navy . It must be noted most Sailors serve honorably earning their honorable discharges. In fairness to those Sailors, commanders and separation authorities are tasked to ensure undeserving Sailors receive no higher characterization than is due. The Applicant’s disobedience of the orders and directives regulating good order and discipline in the naval service demonstrated he was unsuitable for further service. An upgrade to honorable conditions would be inappropriate. Relief denied.

 T here 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. Evidence 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. 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 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 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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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