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Docket No. ND02-00202

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

ex-RM3, USN
Docket No. ND02-00202

Applicant’s Request

The application for discharge review, received 020103, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020912.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  My OIC Lt. H_ advised me to look into an upgrade after 2 years, also off the record he advised me to look into my last evaluation was not done properly.

2.  Spent my whole naval career overseas and served proudly for the greatest nation on earth.

3.  Have been a model citizen since my discharge from the US Navy.

4.  Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on 8/23/2002 and the following comments are hereby submitted:  While on active duty (Applicant) was awarded the Good Conduct Metal, a Letter of Commendation for exempla nary performance of duty.  He was also awarded to Letter of Appreciations, which speaks to his professionalism as a sailor.  During post service, he has maintained a full time job; in addition he is pursuing college studies and electrical apprenticeship program.  We concur with his contention that his discharge be upgraded to Honorable.We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for upgrading the applicant discharge to Honorable.

Documentation

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

Applicant's DD Form 214 (2 copies)
Letter from applicant's wife dated October 10, 2001
Seattle Community College paper for Winter 02 semester dated January 2, 2002
Letter from applicant dated May 1, 2002
Applicant's finger prints
Picture identification card
Notifications of personnel action dated September 25, 1997, September 15, 1997, August 23, 1997, and August 8, 1997
Appointment affidavits dated September 11, 1997 and August 8, 1997
Form 8139 - Protecting the Security of the U.S. Mail signed by applicant dated September 11, 1997
Application for Employment dated August 8, 1997
Prior postal service employment verification dated September 25, 1997
Pre-interview information dated August 8, 1997
Form W-4 (1997) dated August 8, 1997
Falsification and Postal Crime Affidavit dated August 8, 1997
Verification of arrest record information dated August 8, 1997
Information for all casual (temporary) employees dated August 8, 1997
Physical requirements of postal work dated August 8, 1997
Role in Protecting the Security of the United States Mail and acknowledgement dated August 8, 1997
Statement of Selective Service Registration Status dated August 8, 1997
U.S. Department of Justice, Immigration and Naturalization Service Form I-9 dated August 8, 1997
Resignation From the Postal Service dated September 25, 1997
Medical Examination and Assessment dated August 8, 1997
Marriage License and Certificate of Marriage
Seven pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	881229 - 890724	COG
	Active:   USN			890725 - 940123	HON

Period of Service Under Review:

Date of Enlistment:  940124		Date of Discharge:  970515

Length of Service (years, months, days):

	Active:    03  03  22
	Inactive:  None

Age at Entry:  22			Years Contracted:  2 (17 months extension)

Education Level:  12			AFQT:  51/39

Highest Rate:  RM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (3)	Behavior:  3.60 (3)		OTA:  3.73
Performance:  3.00 (1)	Behavior:  2.00 (1)		OTA:  2.86

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR (2), SASM with Bronze Star, OSSM, MUC, GCM

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

940811:	NJP for violation of UCMJ, Article 108: Willfully damage by kicking out one window in patrol car, military property, on 6Aug94, violation of UCMJ, Article 128: Assault on 6Aug94, violation of UCMJ, Article 134: Drunk and disorderly on 6Aug94.
	Award: Forfeiture of $300 per month for 2 months, extra duty for 45 days, reduction to RMSA.  Reduction suspended for 6 months.  No indication of appeal in the record.

940811:	Retention Warning:  Advised of deficiency (Nonjudicial punishment on 11Aug94), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
941031:	Applicant screened by CAAC and recommended for Level I treatment.

950113:	Vacate reduction to RMSN awarded at CO's NJP dated 11Aug94.

950126:	Applicant screened by CAAC and recommended for Level II treatment.

950508:	Applicant to Level II treatment.

950526:	Applicant completed Level II treatment and placed on a formalized aftercare program.

961107:	NJP for violation of UCMJ, Article 86: Absent from unit 0700 - 1200, 5Sep96, violation of UCMJ, Article 92: Violate a general order on 5Sep96, to wit: Article 701, COMNAVFORJAPANINST 5800.9N dated 27 December 1990, by failing to obtain automobile liability insurance, violation of UCMJ, Article 134: Wrongfully leave the scene of the accident without making identity known on 5Sep96.
	Award:  Extra duty for 45 days, reduction to RMSN.  Reduction suspended for 6 months.  No indication of appeal in the record.

970116:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and alcohol abuse rehabilitation failure.

Undated:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

Undated:	Applicant submitted a conditional waiver.  Applicant requested a general discharge in lieu of electing an administrative discharge board.

970417:	Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense and alcohol abuse rehabilitation failure.

970424:	Commander, U.S. Naval Forces, Japan directed the applicant's discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense.

970630:	Commanding Officer recommended discharge under honorable conditions (general) 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 970515 under honorable conditions (general) 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).

Issues 1-4.  The Board’s charter limits its review to a determination on the propriety and equity of the discharge.  In the applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s discharge was proper and equitable.  The Board found the applicant’s record of service does not sufficiently mitigate his misconduct to warrant an upgrade to his characterization of service.  Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice 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.  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 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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 "afls10.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:  A6750/A9453/A9221/A9217/