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NAVY | DRB | 2004_Navy | ND04-00875
Original file (ND04-00875.rtf) Auto-classification: Denied


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

ex-MMFA, USN
Docket No. ND04-00875

Applicant’s Request
The application for discharge review was received on 20040506. 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 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 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. “I AM REQUESTING AN UPGRADE DUE TO AN ILLNESS I CONTRACTED WHILE SERIVING IN THE NAVY. I NOW NEED TREATMENT, AND CAN’T GET IT UNTIL MY DISCHARGE IS UPGRADED.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR            840522 - 841106  COG
         Active: USN                        841107 - 880707  HON

 Period of Service Under Review :
Date of Enlistment: 880708               Date of Discharge: 901116

 Length of Service (years, months, days):

         Active: 02 03 21
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 42

 Highest Rate: MM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.4 (4)     Behavior: 3.1 (4)                 OTA: 3.3

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, SSDR, BER

 Days of Unauthorized Absence: 19

 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 :

 881130:  NJP for violation of UCMJ, Article 86: Absent from place of duty.
         Award: Forfeiture of $608.00 per month for 1 month, restriction and extra duty for 30 days, reduction to E-3 (forfeiture and reduction in rank suspended for 6 months). No indication of appeal in the record.
881208:  NJP for violation of UCMJ, Article 86: Absent from place of duty.
Award: Forfeiture of $500.00, restriction and extra duty for 10 days (forfeiture and reduction in rank suspended for 6 months). No indication of appeal in the record.

890126:  NJP for violation of UCMJ, Article 86: UA (19 days).
         Award: Forfeiture of $608 per month for 1 month, restriction and extra duty for 30 days, reduction to E-3. No indication of appeal in the record.
890126:  Retention Warning from [USS NASSAU]: Advised of deficiency (UA) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890126:  Vacated suspended forfeiture of pay awarded at NJP on 88DEC12 this date due to member’s continued misconduct.
890312: Civil conviction: failure to appear.
         Award: $550.00 fine and 10 days in jail (suspended for 6 months).
900226: Applicant completed level III rehabilitation.

 900614:  NJP for violation of UCMJ, Article 92: Dereliction of duty.
Award: Forfeiture of $250.00 per month for 1 month, restriction and extra duty for 30 days, reduction to MMFN (all punishment suspended for 6 months). No indication of appeal in the record.
900808:  NJP for violation of UCMJ, Article 134: Drunk in public.
Award: Forfeiture of $405.00 per month for 2 month(s), restriction and extra duty for 45 days, reduction to MMFA (all punishment suspended for 6 months). No indication of appeal in the record.
901014:  NJP for violation of UCMJ, Article 92: Dereliction of duty by sleeping during working hours.
Award: Forfeiture of $200.00 per month for 1 month, extra duty for 45 days.

 901014:  Reduction in rate from MMFN to MMFA suspended at CO’s NJP held 90AUG08 is hereby vacated due to continued misconduct.
901014:  [USS NASSAU] notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, commission of a serious offense and alcohol rehabilitation failure as evidenced by 5 NJP’s.
901014:  Applicant advised of 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.

901021:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

901024:  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 19901116 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: 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 on six occasions for violating the UCMJ, Articles 86, 92 and 134 and by a civilian conviction thus substantiating the misconduct. 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 a general (under honorable conditions) characterization of service. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB). There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.

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, effective 870615 - 890110), Article 3630600, SEPARATION OF ENLISTED MEMBERS 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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