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NAVY | DRB | 1999_Navy | ND99-00964
Original file (ND99-00964.rtf) Auto-classification: Denied


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

ex-AZAN, USN
Docket No. ND99-00964

Applicant’s Request
The application for discharge review, received 990709, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. 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 000331. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned the discharge was improperly issued. The Board’s vote was unanimous that the character of the discharge shall change and the reason for the discharge will stay the same. The discharge shall change: UNDER HONORABLE CONDITIONS (GENERAL) /MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. Was informed by Legal Department on USS ENTERPRISE, discharge could be upgraded to honorable after six months. Discharge was due to captain's mast for discussing a previous captain's mast with a civilian. Civilian turned out to be a neighbor of CMC and I was charged for the same thing. Until my arrival on USS ENTERPRISE my evaluation had no marks below 3.6.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214.
Letter from applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        880822 - 911105  HON
         Inactive: USNR (DEP)     871020 - 880821  COG

 Period of Service Under Review :
Date of Enlistment: 911106               Date of Discharge: 950825

 Length of Service (years, months, days):

         Active: 03 09 19
         Inactive: None

 Age at Entry: 18                          Years Contracted: 6

Education Level: 12                        AFQT: 65

 Highest Rate: AZ2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.95 (4)    Behavior: 3.80 (4)                OTA: 3.85

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR(2), NUC, SASMwb*, Pistol Marksmanship Ribbon

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 3630600.

 Chronological Listing of Significant Service Events :

911106:  Reenlisted onboard USS THEODORE ROOSEVELT (CVN-71) for 6 years.

910228:  Retention Warning: Advised of deficiency (Minor misconduct due to commission of a serious offense and civilian conviction), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950310:  Retention Warning: Advised of deficiency (Violation of Article 134, Communicating indecent language), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
950310:  NJP for violation of UCMJ, Article 134: Communicating indecent language on 950208.
         Award: Forfeiture of $661.00 per month for 1 month, restriction and extra duty for 30 days, reduction to E-4. No indication of appeal in the record.

950715:  NJP for violation of UCMJ, Article 134: Communicating indecent language on 950627.
         Award: Restriction and extra duty for 35 days, reduction to E-3. No indication of appeal in the record.
950716:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
950716:          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.
950725:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense

950821:  BUPERS 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 950825 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 improperly issued. Although the Bureau of Personnel specified that the applicant should receive a general discharge, the applicant’s DD-214 states that he received an other than honorable discharge. The applicant’s discharge certificate will be reissued to read UNDER HONORABLE CONDITIONS (GENERAL) / MISCONDUCT.

While the Board voted to upgrade the applicant’s discharge based on an apparent administrative error, the applicant’s issue was also considered. However, the Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion, associated with his discharge at the time of issuance, and that his rights were prejudiced thereby. Relief based on the applicant’s issue is therefore denied.

The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. The applicant must be aware that 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 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 personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, 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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