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NAVY | DRB | 2004_Navy | ND04-01191
Original file (ND04-01191.rtf) Auto-classification: Denied


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

ex-SMSA, USN
Docket No. ND04-01191

Applicant’s Request
The application for discharge review was received on 20040722. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a hearing before a traveling panel. The Applicant did not list any representative on the DD Form 293. The Applicant was advised that his case would receive a documentary review prior to a personal appearance hearing, and that all personal appearance hearings are held in the Washington National Capital Region.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041103. 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. “With all do respect to the Naval Council of Personnel Board Committee, I respectfully request a review of my discharge. I feel that my discharge was improper and inadequate based upon the reason it was filed against me.
My first issue is, I was not given full awareness of the charges brought up against me until I was at Captain’s Mass. At the time of my Captain’s Mass, I was notified of my charge, (under age drinking) outside of the naval base in a civilian bar.
Based on this little information I have given the Naval Council of Personnel Board Committee I hope that the Committee can look into my navy records and reverse the decision I received in (2002) two thousand and two August the eight. I’m at a time in my life where the (O.T.H.) other than honorable discharge is hindering me from receiving my (V.A) Veterans Affairs federal benefits.”
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)     891221 - 900807  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 900808               Date of Discharge: 920828

 Length of Service (years, months, days):

         Active: 02 00 21
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 32

 Highest Rate: SM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (4)    Behavior: 3.05 (4)                OTA: 3.27

 Military Decorations: None

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

 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 :

910606:  NJP for violation of UCMJ, Article 86: UA, violation of UCMJ, Article 91: Insubordinate conduct toward a petty officer.
         Award: Forfeiture of $100.00, restriction and extra duty for 7 days. No indication of appeal in the record.
911014:  NJP for violation of UCMJ, Article 107 (3 Specs): False official statements; violation of UCMJ, Article 121: Larceny.
Award: Forfeiture of $300.00, restriction for 20 days, and extra duty for 30 days. No indication of appeal in the record.
920124:  NJP for violation of UCMJ, Article 86: UA; violation of UCMJ, Article 92: Disobey a lawful order.
Award: Forfeiture of $200.00, reduction to E-3. No indication of appeal in the record.
920128:  Retention Warning from USS LOCKWOOD (FF 1064): Advised of deficiency (inability to report to assigned place of duty and be prepared to perform assigned tasks, failure to obey orders), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920311:  NJP for violation of UCMJ, Article 92: Disobey a lawful order.
         Award: Reduction to SMSA. No indication of appeal in the record.
920623:  NJP for violation of UCMJ, Article 86: UA.
Award: Forfeiture of $150.00. No indication of appeal in the record.
920729:  USS LOCKWOOD notified Applicant of intended recommendation for 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 as evidenced by his NJPs during the current enlistment.
920729:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights

920729:  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.

920817:  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 19920828 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. The Board discerned no impropriety in the record of nonjudicial punishments awarded the Applicant during his enlistment. 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 five occasions for violation of UCMJ, Articles 86, 92, 107, and 121. 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.

 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.
The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety occurred 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, employment record, 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, 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 5420.174C 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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