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Docket No. ND04-00693

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

ex-ACAR, USN
Docket No. ND04-00693

Applicant’s Request

The application for discharge review was received on 20040325.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20041112.  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)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge was ineqiutable because it was at my request that I be discharged.  The Captain of my command did not recommend my discharge until reading my personal letter written to him.  I asked that it be given to him by my Senior Chief because I did not feel that continuing my careee in rthe Navy would be beneficial to me or the United States Navy.  If I had not requested to the discharge I would have remained in the military.  I truly believe has this be true that I would have discharded the next year with an Honorable Discharge without fail.”

Documentation

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

Copy of DD Form 214.
Character reference letter dated 02 February 2004
Character reference letter dated 06 February 2004
Character reference letter dated 25 January 2004
Service record documents (62 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930224 - 931109	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  931110		Date of Discharge:  971221

Length of Service (years, months, days):

	Active:    04  01  12
	Inactive:  None

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

Education Level:  12			AFQT:  65

Highest Rate:  AC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.73 (3)	Behavior:  3.86 (3)		OTA:  3.80
		 3.50 (2)		       2.00 (2)			2.85
Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, NDSM, SWAS w/ Bronze Star

Days of Unauthorized Absence:  1

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

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

Chronological Listing of Significant Service Events:

970626:	NJP for violation of UCMJ, Article 86 (2 Specs):  Unauthorized absence from appointed place of duty.
	Award:  Restriction and extra duty for 15 days, reduction to E-3.  Punishment suspended 6 months.  No indication of appeal in the record.

970920:	Punishment of reduction in rate to E-3 suspended at CO’s NJP of 970626 vacated this date due to continued misconduct.

970920:	NJP for violation of UCMJ, Article 86 (2 Specs):  Unauthorized absence from duty section on 970822, UA from appointed place of duty on 970820, Article 92:  Violate a general regulation on 970822.
	Award:  Restriction and extra duty for 30 days, reduction to E-2, forfeiture of $500.00 per month for 1 month.  Forfeitures suspended 6 months.  No indication of appeal in the record.

970920:	Retention Warning:  Advised of deficiency (violation of the UCMJ Article 86 (2 specs): UA; Article 92: Disobeying a lawful general regulation), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

971211:	NJP for violation of UCMJ, Article 134:  Wrongfully communicate a threat on 970819.
	Award:  Restriction and extra duty for 20 days, reduction to E-1.  Punishment suspended 6 months.  No indication of appeal in the record.

971218:	Applicant notified of intended recommendation for discharge with a least favorable characterization of general (under honorable conditions) by reason of misconduct due to the commission of a serious offense and a pattern of misconduct as evidenced by all punishments under the UCMJ in Applicant’s current enlistment.

971218:	Applicant advised of her rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

980131:	Commanding Officer directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense and pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19971221 with a general (under honorable conditions) for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1:  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  The Applicant contends her discharge is inequitable because it was based on her request for discharge to her Commanding Officer.  Based on a review of the Applicant’s service record, it appears that the Applicant was discharged as a result of her continuing misconduct.  Specifically, the Applicant’s service was marred by 3 nonjudicial punishment proceedings for violations of Articles 86, 92, and 134 of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service.  Relief is not warranted.

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 her 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), 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.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92, violation of a lawful general order, if adjudged at a Special or General Court Martial.

C.  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.  

D.  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.

E.  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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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.