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NAVY | DRB | 2004_Navy | ND04-00965
Original file (ND04-00965.rtf) Auto-classification: Denied


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


ex-EMFA, USN
Docket No. ND04-00965

Applicant’s Request
The application for discharge review was received on 20040527. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 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 20050107. 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. “In 1992 disabilities, and wish I would took the treatment offered I was young and I didn’t understand the implication of a OTH. Since 1992 I’ve been low income, and I was offered medical that didn’t cover mental health.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890718 - 890917  COG
          Active: None                      

Period of Service Under Review :
Date of Enlistment: 890918               Date of Discharge: 920110

 Length of Service (years, months, days):
         Active: 02 03 22
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 50
Highest Rate: EMFN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.93 (3)    Behavior: 2.86 (3)                OTA: 3.33

 Military Decorations: None
Unit/Campaign/Service Awards: CAR, NUC, NDSM, SASM(2), SSDR

 Days of Unauthorized Absence: None
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 :

910605:  NJP for violation of UCMJ, Article 134: Drunkenness, incapacitation for the performance of duties through prior wrongful indulgence in intoxicating liquor.
         Award: Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 15 days. No indication of appeal in the record.
910607:  Retention Warning from [USS TRIPOLI (LPH 10)]: Advised of deficiency (You violated Article 134 of the UCMJ by being drunk and incapacitated for performance of duties through wrongful indulgence in intoxicating liquor), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910726:  NJP for violation of UCMJ, Article 90: Willful disobedience of a Superior Commissioned Officer.
         Award: Forfeiture of $100.00 pay per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.
911007:  Retention Warning from [USS TRIPOLI 9LPH-10)]: Advised of deficiency (Alcohol Abuse), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
911204:  NJP for violation of UCMJ, Article 86: UA from 0730-0813, 911127 for CAAC screening appointment; violation of UCMJ, Article 92: Fail to obey by removing his NCCP sticker from his AFID card; violation of UCMJ, Article 134: Incapacitated for the performance of duty by reporting to CAAC screening under alcohol influence (BAC.063%).
         Award: Forfeiture of $423.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.
911209:  USS TRIPOLI (LPH-10) 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 CO’s NJP of 910605, violation of the UCMJ, Article 134, drunkenness-incapacitation for performance of duties through prior wrongful overindulgence in intoxicating liquor. Your CO’s NJP of 910726, violation of the UCMJ, Article 90, willful disobedience of a superior commissioned officer. Your CO’s NJP of 911204, violation of the UCMJ, Article 86, unauthorized absence from 0730 to 0813, 911127, violation of the UCMJ, Article 92, fail to obey a lawful order by removing your No Civilian Clothes Privilege Sticker from your AFID Card and violation of the UCMJ, Article 134, incapacitation for the performance of duties through prior wrongful overindulgence in intoxicating liquor by reporting to CAAC screening with a BAC of .063%. Additionally, you are being processed for misconduct due to commission of a serious offense as evidenced by CO’s NJP of 910726, violation of the UCMJ, Article 90, willful disobedience of a superior commissioned officer.
911210:  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.
911212:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.
920108:  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 19920110 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 three occasions for violating the UCMJ, Articles 86, 90, 92 and 134 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 an honorable 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 Naval 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.

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 the service. 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. 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.

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, 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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