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NAVY | DRB | 2004_Navy | ND04-01039
Original file (ND04-01039.rtf) Auto-classification: Denied


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

ex-SMSA, USN
Docket No. ND04-01039

Applicant’s Request
The application for discharge review was received on 20040617. The Applicant requests 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 the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050304. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 1. “I realize the mistakes that I have made as a young seaman and I take ownership of my mistakes. I regret the negative impact that my conduct has had on the Navy and myself. My desire is to become a more productive citizen in a civilian capacity. In order to fulfill this desire, I want to return to college to complete my college degree. In an effort to make this happen, an upgrade in my characterization is necessary to obtain any educational benefits that I may be therefore eligible for.”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Certificate of Completion, Staff Effectiveness, dated November 5, 2003
Certificate of Completion, Activity Planning, dated November 5, 2003
Certificate of Completion, Role of the Child Care Worker, dated November 5, 2003
VA Statement of Support of Claim, dated December 8, 2004
Picture of Applicant, not dated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     001031 - 001113  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 001114               Date of Discharge: 030711

 Length of Service (years, months, days):

         Active: 02 07 28
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 53

 Highest Rate: SM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (1)             Behavior: 1.00 (1)                OTA: 1.67

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, NER

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140.

 Chronological Listing of Significant Service Events :

010703:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order.
         Award: Forfeiture of ½ month’s pay per month for 1 month (Suspended for six months), restriction and extra duty for 10 days, reduction in rate (Suspended for six months). No indication of appeal in the record.



 010703:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 92; Failure to obey a lawful order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
030201:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 112: Drunk on duty.
         Award: Restriction for 60 days, reduction to E-3. No indication of appeal in the record.

030202:  Retention Warning: Advised of deficiency (Violation of UCMJ Articles 86; Unauthorized absence, and Article 112), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030626:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of Article 92: Dereliction of duty.
         Award: Forfeiture of ½ month’s pay per month for 2 months, restriction for 60 days, reduction to E-2. Processed for administrative separation. No indication of appeal in the record.
030711:  DD Form 214: Applicant discharged under other than honorable conditions by reason of a pattern of misconduct, authority: NAVMILPERSMAN, Article 1910-140.

No discharge package available to the board

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030711 under other than 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: 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 three nonjudicial punishment (NJP) proceedings for violations of UCMJ, Articles 86 (Unauthorized absence), 92 (Failure to obey a lawful order), 92 (Dereliction of duty), and 112 (Drunk on Duty). 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.

 The Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

The following is provided for the edification of the Applicant. 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 naval service. 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. 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. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his 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 additional documentation to support any claims of post-service accomplishments or any other evidence relating 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), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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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