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NAVY | DRB | 2004_Navy | ND04-01388
Original file (ND04-01388.rtf) Auto-classification: Denied


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

ex-AO3, USN
Docket No. ND04-01388

Applicant’s Request
The application for discharge review was received on 20040901. 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 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: 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:

“ I think the actions, and discharge characterization was unjust in my case. I had not been in trouble for almost 2 years and when I was about to transfer and already checked off of my prior command the kitty hawk they tried to say that I damaged the shop computer, and when they found out that I had been drinking prior that it was another alcohol incident. But nothing was wrong with the computer so they dropped those charges and still kept the drunk disorderly. Then the paperwork I got when I processed out said that I didn’t have orders when this was going on but I did.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copies of 6 pages from the Applicants Discharge Package
Copy of the Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990426 – 990520  ELS
 Inactive: USNR (DEP)     991026 - 991031  COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 991101               Date of Discharge: 030210

 Length of Service (years, months, days):

         Active: 03 03 10
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 44

 Highest Rate: AO3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (2)    Behavior: 2.00 (2)                OTA: 3.03

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, AFEM, SSDR(2), NMOSR(2)

 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 :

000525:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order.
         Award: Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 45 days. No indication of appeal in the record.
001111:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 92-Failure to obey lawful order, Article 134-Disorderly conduct, drunkenness), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

001111:  NJP for violation of UCMJ, Article 92: Failure to obey lawful general order; violation of UCMJ, Article 134: Disorderly conduct, drunkenness.
         Award: Forfeiture of $563.00 pay per month for 1 month, restriction and extra duty for 45 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.
010609:  NJP for violation of UCMJ, Article 134: 010525, disorderly conduct, drunkenness.
Award: Restriction and extra duty for 15 days. No indication of appeal in the record.
030114:  NJP for violation of UCMJ, Article 134: 030110, disorderly conduct, drunkenness.
Award: Forfeiture of $802.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 30 days. No indication of appeal in the record.
030114:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to a commission of a serious offense.
030114:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

030116:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

030117:  Commander, Carrier Group FIVE authorized 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 20030210 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).

 The Applicant contends that he served the United States well “for almost 2 years” and he is entitled to an upgrade. 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. An Under Other Than Honorable Conditions 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 4 nonjudicial punishment proceedings for violations of Articles 92 and 134 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 Applicant's other than honorable discharge was proper and equitable. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge. The Applicant's misconduct is clearly documented. He acknowledged and waived his rights to administrative review. He was notified that by waiving his rights and accepting an other than honorable discharge, he could possibly encounter significant difficulties in obtaining employment and other benefits. The Applicant was afforded the appropriate due process during the processing of his case. An upgrade of the Applicant's discharge to an honorable characterization is not warranted. Relief denied.

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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