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NAVY | DRB | 2000_Navy | ND00-00738
Original file (ND00-00738.rtf) Auto-classification: Denied


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

ex-AZ3, USN
Docket No. ND00-00738

Applicant’s Request
The application for discharge review, received 000522, requested that the characterization of service on the discharge be changed to honorable and that the reason for the discharge be changed to completion of service time/RE-1A. The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Spencer, OK. The applicant did not list representative on the DD Form 293.
In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) did not travel and all personal appearance hearing are held in the Washington National Capital Region.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 001214. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an impropriety in the applicant’s discharge. The Board’s vote was unanimous that the character of the discharge shall not change, but was unanimous that the reason for discharge shall change. The discharge shall read: GENERAL (UNDER HONORABLE CONDITIONS)/SECRETARIAL AUTHORITY, authority: NAVMILPERSMAN, Article 3630900.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. Over 95% of my service record is honorable and so warrants an upgrade to honorable.
-I received an Honorable discharge and a good conduct medal from my previous command after 4 years of service.
2. I faced harassment and discrimination which impaired my ability to serve and so warrants an upgrade to honorable.
-Throughout the year I spent at HS-14, I was constantly provoked, harassed and discriminated against by my chief and the master chief in their attempts to get me to display acts of misconduct.
3. My discharge was not properly characterized as honorable and so warrants an upgrade to honorable [A69.06].
        
-4 years of my 5 years Naval career were established as honorable with an honorable discharge. 1 year later my Naval career ended prematurely with a general discharge. A general discharge is an inaccurate reflection of my total 5 years of service.
4. My performance evaluations were not based on my work performance and so warrants an upgrade to honorable.
        
-My last evaluations fromHS-14 drastically upset my established pattern of achievement from college and my previous command. They are an inaccurate reflection of my work performance and contribution.
5. I had a prior honorable discharge and so warrants an upgrade to honorable [A92.20].
        
-I received an honorable discharge from the USN on March 1998.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Arguments/Contention Letter from Applicant
Honorable Discharge Certificate

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        940412 - 980319  HON
         Inactive: USNR (DEP)     940107 - 940411  COG

 Period of Service Under Review :
Date of Enlistment: 980320               Date of Discharge: 990721

 Length of Service (years, months, days):

         Active: 01 04 01
         Inactive: None

 Age at Entry: 24                          Years Contracted: 3

Education Level: 16                        AFQT: 69

 Highest Rate: AZ2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.50 (2)    Behavior: 1.50 (2)                OTA: 1.56

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, NMCOSR (3 RD ), GCA, NAVY"E"RIBBON, AFEM, NUC

Days of Unauthorized Absence: None

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

GENERAL (UNDER OTHER CONDITIONS)/UNSATISFACTORY PERFORMANCE, authority: NAVMILPERSMAN, Article 1910-156 (formerly 3630300).

 Chronological Listing of Significant Service Events :

980320:  Reenlisted at ATSUGI JAPAN for 3 years.

990329:  Adverse Performance Evaluation Report.

 990401:  NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ Article 107: False Official Statements.
         Award: Restriction for 30 days to USS KITTY HAWK, defrocked to E-3. No indication of appeal in the record.
990615:  Adverse Performance Evaluation Report.

990615:  Retention Warning: Advised of deficiency (Unsatisfactory Performance), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.  

990616:  Applicant notified of intended recommendation for discharge general under honorable conditions by reason of unsatisfactory performance due to failure to perform duty assignment satisfactorily.
990616:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

990616:  Commanding officer recommended discharge general under honorable conditions by reason of unsatisfactory performance due to failure to perform duty assignment satisfactorily.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990721 with a general under honorable conditions by reason of unsatisfactory performance discharge (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 executed for Unsatisfactory Performance (reason) but was equitable in characterization (general) (C and D). Since the applicant’s service record documents a commission of a serious offense (Violation of UCMJ Article 107) and overall performance marks of 1.56, the Board found the General (under honorable conditions) discharge accurately characterized the applicant’s service. Due to processing for the wrong reason, the Board only grants relief in the reason for discharge. The reason shall change to: Secretarial Authority.

 The applicant’s first issue states: “Over 95% of my service record is honorable and so warrants an upgrade to honorable. I received an Honorable discharge and a good conduct medal from my previous command after 4 years of service.” As every enlistment results in a discharge for that period alone, the NDRB found the applicant’s low overall performance, 1.56, and misconduct, violation of UCMJ Articles 86 and 107, in his last enlistment warranted a discharge of General (Under Honorable Conditions). Relief is not warranted.

The applicant’s second issue states: “I faced harassment and discrimination which impaired my ability to serve and so warrants an upgrade to honorable. Throughout the year I spent at HS-14, I was constantly provoked, harassed and discriminated against by my chief and the master chief in their attempts to get me to display acts of misconduct.” The NDRB found nothing in the record to support this issue, and he applicant failed to provide any documentation to support this issue. Relief is not warranted.

The applicant’s third issue states: “My discharge was not properly characterized as honorable and so warrants an upgrade to honorable [A69.06]. 4 years of my 5 years Naval career were established as honorable with an honorable discharge. 1 year later my Naval career ended prematurely with a general discharge. A general discharge is an inaccurate reflection of my total 5 years of service.” The NDRB found this issue without merit. The applicant’s second enlistment included a NJP for violation of UCMJ Articles 86 and 107 as well as low marks, 1.56 overall. Relief is not warranted.

The applicant’s fourth issue states: “My performance evaluations were not based on my work performance and so warrants an upgrade to honorable. My last evaluations fromHS-14 drastically upset my established pattern of achievement from college and my previous command. They are an inaccurate reflection of my work performance and contribution.” There is nothing in the record to support this issue. Relief is denied.

The applicant’s fifth issue is without merit. The applicant’s last enlistment was marred by misconduct and low performance evaluations. In this case, the General (Under Honorable Conditions) discharge accurately characterized his service. Relief is denied.

 The NDRB is authorized to consider post-service factors in the re characterization of a discharge. 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 failed to provide post service considerations for the Board.

The applicant requested a change in his RE Code on his DD Form 293. The NDRB has no authority to change reenlistment codes. The applicant is encouraged to contact his local recruiter for information regarding possible reenlistment.

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. The Naval Military Personnel Manual, (NAVPERS 15560C), change 18, effective 12 Dec 97 to Present, Article 1910-156 (formerly 3630300), Separation by Reason of Unsatisfactory Performance.

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 " 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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