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NAVY | DRB | 1999_Navy | ND99-00074
Original file (ND99-00074.rtf) Auto-classification: Denied


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

ex-HA, USN
Docket No. ND99-00074

Applicant’s Request
The application for discharge review, received 981020, requested that the characterization of service on the discharge be changed to honorable. The applicant requested 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 990927. 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.

The NDRB did note an administrative error on the original DD Form 214. Block 12a, Date Entered AD This Period should read: "94 JUL 25" vice "94 AUG 23", and Block 12c, Net Active Service This Period should read: 03 02 16" vice" 03 01 18”. The original DD Form 214 should be corrected or reissued as appropriate.





PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I have submitted this application in an attempt to upgrade my discharge to Honorable so that I may recieve my G.I. Bill. I am currently attending school on an independant level and the financial help would be a great asset. I am holding a 4.0 G.P.A. and hope to attend chiropractic school in the future. I also work full time and the G.I. Bill would ease the strain on my college career. I hope you will take my application into serious consideration and thank you greatly for your time.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     930730 - 940724  COG

 Period of Service Under Review :
Date of Enlistment: 940725               Date of Discharge: 971010

 Length of Service (years, months, days):

         Active: 03 02 16
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 75

 Highest Rate: HN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                           Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, NDSM

 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 :

970609:  Special Court Martial
         Charge I: violation of the UCMJ, Article 129.
         Specification: Unlawful entry with intent to commit rape on 24 July 1996.
         Charge II: violation of the UCMJ, Article 134:
         Specification: Having sex in the presence of another on 24 July 1996.
         Findings: to Charge I and specifications 1 and 2 thereunder, guilty.
         Sentence: Confinement for 35 days, forfeiture of $500 per month for 2 months, reduction to HA.
         CA 970825: Sentence approved and ordered executed.

970805:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
970805:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
970813:  Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

970925:  Chief of Naval Education and Training directed the applicant's discharge general (under 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 971010 general (under 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 cites a personal need to upgrade his discharge to allow access to G.I. Bill education benefits that would ease the cost of his higher education. The Board found this issue does not warrant relief and the discharge was proper and equitable given the circumstances.

The applicant must be aware that there is no law or regulation that provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good grades in school subsequent to leaving the service. Normally, to permit relief, an error or injustice must 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 is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 14 Mar 98, 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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, D.C. 20374-5023     

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