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NAVY | DRB | 2004_Navy | ND04-01304
Original file (ND04-01304.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND04-01304

Applicant’s Request
The application for discharge review was received on 20040818. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance discharge review before a traveling panel closest to St. Augustine, FL. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. 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: GENERAL (UNDER 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 feel that I was unjustly issued a general discharge. A review of my evaluation reports will show that I deserved an honorable discharge. I was placed on report on two different occasions and I went to captains mast. I regret those two incidents but I do not feel they justify a general discharge. ”

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

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     981221 - 991129  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 991130               Date of Discharge: 030307

 Length of Service (years, months, days):

         Active: 03 03 08
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (22 month extension)

 Education Level: 12                        AFQT: 34

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF
[*No Marks found in service record]

 Military Decorations: None

 Unit/Campaign/Service Awards: NATO MEDAL, N’E’R, SSDR (2) NDSM, NMCOSM, SWB

 Days of Unauthorized Absence: 1

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

021120:  NJP for violation of UCMJ, Article 86: Failure to go. Violation of UCMJ, Article 92: Failure to obey an order or regulation.
         Award: Forfeiture of $619 per month for 2 month(s), restriction and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.
021120:  Retention Warning: Advised of deficiency (UA and failure to obey lawful order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030130:  UA for 20 hours.

030206:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward warrant officer, NCO or petty officer (2 specs). Violation of UCMJ Article 92: Failure to obey an order or regulation.
Award: Forfeiture of $575 per month for 2 month(s), restriction and extra duty for 30 days, reduction to E-1. No indication of appeal in the record.
030227:  Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct and by reason of misconduct due to commission of a serious offense.
030227:  Applicant advised of rights and having elected not to 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

030303:  CO, NASC directed the Applicant's general (under 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 awarded a general (under honorable conditions) discharge on 20030307 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 Applicant contends that a review of his evaluation reports will show that he deserved an honorable discharge. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A General discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by two nonjudicial punishment proceedings for violations of Articles 86, 91 and 92 of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 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. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. Relief denied.

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), 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 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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