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NAVY | DRB | 1999_Navy | ND99-00097
Original file (ND99-00097.rtf) Auto-classification: Denied


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

ex-FA, USN
Docket No. ND99-00097

Applicant’s Request
The application for discharge review, received 981023, 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 person or organization as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991004. 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 – Commission of a serious military or civilian offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. “I was discharged other than honorable because I had a drinking problem and I got in trouble in the civilian world. They punished me on base and then gave me an other than honorable discharge. I have since recovered from my alcohol problem. I went to AA and I am a responsible person in society. I have went to college and am a Class “A” electrician at Kohler and am in the union. I’ve worked my butt off to get straight. I was young in the Navy and I made my mistakes and I felt the impact of my mistakes after I grew up a little bit. My life is good now but the Navy told me when I was discharged that I could upgrade myself but they informed me it was better to do it when I got myself together. It has been 5 years. I have been recovered for 4 ½ years and I believe its time to upgrade to an honorable. I did my time and I am a responsible person to society. I am everything the Navy expected me to be. I apologize that the timing wasn’t right but the Navy contributed to the changes I have made in my life for the good. I think that this would be a helpful contribution to be able to report that I am a honorable discharge and would be greatfully appreciated. Thank you.”

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Medical Records from Southeastern Wisconsin Medical and Social Services
Job/character reference dated May 2, 1997
Copy of employee performance review dated August 21, 1996
Copy of rate change request dated August 21, 1996
Copy of certificate for D.C. Electrical Overhead Crane Control dated July 30, 1996
Copy of 1996 Maynard Steel Casting Company, Safety Award

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     920207 – 921130  COG

 Period of Service Under Review :
Date of Enlistment: 921201               Date of Discharge: 940110

 Length of Service (years, months, days):

         Active: 01 01 10
         Inactive: 00 00 00

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 92

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT – Commission of a serious military or civilian offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

930603:  NJP for violation of UCMJ, Article91: Failure to obey lawful order by a CPO to complete 20 hours of after-hours study. Violation of UCMJ, Article 92: Violation of a lawful general regulation, operating a motorcycle without wearing a helmet.
         Award: Restriction and extra duty for 15 days, reduction to E-2. No indication of appeal in the record.
930603:  Administratively reduced to E-1 due to disenrollment from the Nuclear Power Training Program for demonstrated unreliability.

Undated:         Retention Warning: Advised while attending Nuclear “A” Field School of deficiency (UA, uniform regulation violations and unsatisfactory effort and motivation), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930819:  Convicted in civilian court of improper exhibition of a firearm. Pled no contest, withheld adjudication of guilt.
          Awarded: 25 days unsupervised probation, 25 days credit and $100 fine.
        
931116:  Convicted in civilian court on charges of battery and domestic violence. Pled guilty, withheld adjudication of guilt.
         Awarded: 2 Days unsupervised probation and $100 fine.

931203:  NJP for violation of UCMJ, Article 86 (2 Specs): Unauthorized Absence from 0700 to 0925 on 930916 and from 0700 to 0900 on 930922). Violation of UCMJ, Article 92: Did on 931101 violate a lawful general regulation by wrongfully possessing alcoholic beverages while under the age of 21.
         Award: Forfeiture of $407 per month for 1 month, restriction and extra duty for 30 days. Forfeiture suspended for 1 month. No indication of appeal in the record.
931208:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of Misconduct due to the Commission of a Serious Offense.
931208:          Applicant advised of his rights and having elected not to consult 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.
931210:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of Misconduct due to the Commission of a Serious Offense. Commanding officer’s comments: “FR (applicant's) continued misconduct clearly displays his total disregard for naval authority, rules and regulations. In addition, his civilian convictions demonstrate that FR (applicant) has no regard for the laws which govern all citizens of the United States. His unacceptable behavior has made him an administrative burden and an embarrassment to the United States Navy. I strongly recommend that SR (applicant) be discharged from the naval service with an other than honorable discharge as soon as possible.”

931221:  BUPERS 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 940120 under Other Than 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).

In the applicant’s issue 1, the Board found this issue to be without merit. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides that a less than Honorable 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 occurred during the period of enlistment in question. No such error or injustice is evident in the applicant’s service record. 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, is considered. The supporting documentation provided was not adequate to support the applicant’s claim of credible post-service conduct. The applicant's efforts need to be more encompassing than those provided. Evidence of continuing educational pursuits, a verifiable employment history, documentation of community service and certification of non-involvement with civil authorities, would provide a basis for clemency consideration, based on post-service conduct. At this time, the applicant has not provided sufficient documentation of good character and conduct. He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing, provided the application is received within 15 years from the date of discharge. Representation at the personal appearance hearing is strongly recommended. Relief denied.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 91: Failure to obey a Chif Petty Officer and Article 92: Failure to obey a lawful order or regulation, 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 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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