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NAVY | DRB | 2004_Navy | ND04-01120
Original file (ND04-01120.rtf) Auto-classification: Denied


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

ex-AZAA, USN
Docket No. ND04-01120

Applicant’s Request
The application for discharge review was received on 20040629. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained American Legion as the representative.

Decision

A documentary discharge 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

 Applicant’s issues, as stated on the application:

1. “I am requesting an upgrade to utilize educational assistance, I have improved dramatically in maintaining good working habits, in particular: arriving to work on time on a daily basis. I have included letters of recommendation and references that can attest to that fact. While I was a service member, I took advantage of the Montgomery GI Bill and the Navy Tuition Assistance Program. My discharge was based on failure to report to work on time on several occasions. I have made a tremendous effort to maintain a level of professionalism and integrity concerning employment and general life practices.”

No additional issues were submitted by the Applicant’s representative (American Legion).
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from the Applicant, dated June 16, 2004
Character/job reference, dated July 24, 2001
Character/job reference, dated November 26, 2001
List of Applicant’s employment references
Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     960522 - 961001  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 961002               Date of Discharge: 000202

 Length of Service (years, months, days):

         Active: 03 04 01
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 51

 Highest Rate: AZAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.33 (3)             Behavior: 2.67 (3)                OTA: 2.56

 Military Decorations: None

 Unit/Campaign/Service Awards: AFSM, SSDR, AFEM, NUC, LoC, NDSM, 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 (formerly 3630600).

 Chronological Listing of Significant Service Events :

971014:  NJP for violation of UCMJ, Article 86: Unauthorized absence 0630-1330, 970922; violation of UCMJ, Article 107: Make a false official statement with intent to deceive on 970922.
         Award: Forfeiture of $450 per month for 2 months, restriction and extra duty for 30 days, reduction to E-1. Reduction suspended for 6 months. No indication of appeal in the record.
980625:  NJP for violation of UCMJ, Article 86: UA; violation of UCMJ, Article 92: Disobey a lawful order. No further information found in service record. [Extracted from Evaluation Report & Counseling Record dated 980715.]

980811:  Vacate forfeiture of $519 for 1 month awarded at CO’s NJP dated 980625 due to continued misconduct.

980811:  NJP. No further information found in service record. [Extracted from NAVPERS 1070/604, Awards page.]
990816:  NJP. No further information found in service record. [Extracted from NAVPERS 1070/604, Awards page.]

991105:  NJP for violation of UCMJ, Article 86 (3 specs): Unauthorized absence.
         Award: Forfeiture of $612 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Reduction suspended for 6 months. No indication of appeal in the record.
991229:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of $537 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
000202:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct, authority: NAVMILPERSMAN, Article 1910-140 .

 Applicant’s discharge package missing from service record

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000202 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. The Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
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. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on six occasions for unauthorized absences, failure to obey orders, a false official statement, and possibly other offenses not included in the available records. 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 or under honorable (general) characterization of service. An upgrade is inappropriate. Relief denied.

 Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety is evident during the Applicant’s enlistment. Additionally, 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. 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, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. 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 18, effective
12 Dec 1997 until 21 Aug 2002, 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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