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Docket No. ND01-00182

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

ex-CM2, USN
Docket No. ND01-00182

Applicant’s Request

The application for discharge review, received 001129, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010510.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Being held past my EAOS, I was processed for termination from service as 12May2000, not even allowed to go of my own accord.

2.  The very basis for termination by my command, was resultant of the command bringing police to my personal property, having me arrested and jailed, for charges, dismissed - later in civil court.

3.  My service record reveals nothing less than total dedication to the Navy for the entire 15 years I served.

4.  Not eligible for VA Benefits while I have medical conditions resultant of my service including a lung desease contracted while deployed.

5.  Refused Retrabution for over 60 days of earned leave.

6.  Montgomery GI Bill input lost.

7.  Stranded in Gulfport Mississippi with a complete household shipment.

8.  Unfair treatment by the Navy.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of DD Form 214
One page from applicant's service record
Letter from Board for Correction of Naval Records (BCNR) to Congressman dated September 20, 2000
Letter from Member of Congress dated September 12, 2000
Letter from applicant to congressman dated August 23, 2000 and May 5, 2000
Letter to applicant from Member of Congress dated May 16, 2000
Letter from applicant to BCNR dated August 23, 2000
Copy of DD Form 149 dated August 23, 2000

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

Inactive: USNR (DEP)	840626 - 850120	COG
Active:   USN 			850121 - 890330	HON
	   USN			890331 - 930812	HON
	   USN			930813 - 980507	HON

Period of Service Under Review:

Date of Enlistment:  980508		Date of Discharge:  000512

Length of Service (years, months, days):

	Active:    02  00  05
	Inactive:  None

Age at Entry:  37			Years Contracted:  2

Education Level:  12 1/2		AFQT:  63

Highest Rate:  CM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)	Behavior:  1.00 (2)		OTA:  2.65	5.0 evals

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM (4), SSDR, BER, MUC, OSR (3), NDSM, HSM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

990516:	Retention Warning:  Advised of deficiency, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	Extracted from CO's letter dated 22 February 2000.

000203:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86.
	Specification: Absent from place of duty 0625-1149, 17May99.
	Charge II: violation of the UCMJ, Article 91:
	Specification 1: Willfully disobey order to report to the Quarterdeck by 1000, 16May99.
	Specification 2: Disrespectful in language and deportment toward LN1 on 16May99, to wit: by saying "Get off my property" while brandishing a firearm.
	Charge III: violation of the UCMJ, Article 128
	Specification: Assault by urinating in her face on 15May99.
	Charge IV: violation of the UCMJ, Article 134:
	Specification: Orally communicate certain indecent language on 14May99, to wit: you are a whore, bitch and slut.
	Finding:  to Charge I, II, III and IV and the specifications thereunder, guilty.
	Sentence:  Forfeiture of $200.00, restriction for 30 days.
	CA action 000331:  Sentence approved and ordered executed.
	
000207:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

000207:  	Applicant advised of his rights and having consulted 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.

000222:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

000428:	Chief of Naval Education and Training directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000512 under other than honorable conditions for misconduct due to commission of a serious offense (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’s first issue states:  “Being held past my EAOS, I was processed for termination from service as 12May2000, not even allowed to go of my own accord.”  The Board found no impropriety or inequity in this issue.  The record shows that the applicant was processed for administrative discharge.  The separation authority directed the applicant’s discharge within ten working days from receipt of his letter dated 28 April 2000.  The record shows that the discharge was accomplished in the time limit as directed.  The applicant remained on active duty five days beyond his EAOS due to administrative processing for his documented misconduct.  Relief is not warranted.

The applicant’s second issue states:  “The very basis for termination by my command, was resultant of the command bringing police to my personal property, having me arrested and jailed, for charges, dismissed - later in civil court.”  The NDRB found that the basis for the applicant’s discharge was his conviction at Summary Court Martial of violations UCMJ Articles 86, 91 (two specifications), 128, and 134.  The Board found the applicant’s issue without merit.  Relief is denied.

The applicant’s third issue states:  “My service record reveals nothing less than total dedication to the Navy for the entire 15 years I served.”  The applicant’s service record documents the applicant’s conviction at Summary Court Martial for violations UCMJ Articles 86, 91 (two specifications), 128, and 134.  The applicant’s misconduct outweighed his otherwise creditable service and accurately characterized his last enlistment.  Relief is not warranted.

The applicant’s fourth issue states:  “Not eligible for VA Benefits while I have medical conditions resultant of my service including a lung disease contracted while deployed.”  The NDRB does not determine eligibility for any VA benefits.  The applicant should consult with the VA in order to determine eligibility for benefits.  The Board did not consider this issue decisional based on the propriety or equity of the applicant’s discharge.  Relief is not warranted.

The applicant’s fifth and sixth issues state:  “Refused Retribution for over 60 days of earned leave; and Montgomery GI Bill input lost.”  The NDRB did not find these issues decisional.  Relief is not warranted.

The applicant’s seventh issue states:  “Stranded in Gulfport Mississippi with a complete household shipment.”  The Board found this issue non decisional.  The NDRB does not make decisions regarding property or the transportation of household goods.  Relief is not warranted.

The applicant’s eighth issue states:  “Unfair treatment by the Navy.”  The Board examined the applicant’s service record for propriety and equity.  The record shows that the applicant was afforded all of his rights and the discharge was properly executed.  Additionally, the Board examined the applicant’s service record and found no inequity in the discharge.  The record clearly shows the applicant was found guilty of serious military offenses at a Summary Court Martial.  The Board found considering the seriousness of the offenses that the discharge accurately characterized his service in his last enlistment.  Relief is denied.  

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, may be considered by the NDRB.  The applicant did not provide any post service documentation to support a change based post service.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.

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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6730/A9217/A9321