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NAVY | DRB | 2000_Navy | ND00-00749
Original file (ND00-00749.rtf) Auto-classification: Denied


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

ex-SN, USN
Docket No. ND00-00749

Applicant’s Request
The application for discharge review, received 000530, 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 001214. 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 four to one that the character of the discharge shall not change. The discharge shall remain: UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. I have been a good citizen since discharge.

2. My record of NJP's/Article 15's indicates only isolated or minor offenses.

3. Medical or physical problems I had impaired my ability to serve.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement of Material Contentions
Copy of Naval Alcohol and Drug Safety Action Program certificated dated February 28, 1991
Letter from Dean of Faculty of Suffolk County Community College dated January 18, 2000
Letter from Professor of Accounting dated February 2, 2000
Letter of Appreciation dated May 22, 1993
Letter of Appreciation dated February 10, 1993
Character reference from Associate Pastor dated March 3, 1993
Character reference dated March 2, 1993
Four pages from applicant's service record
Letter from Diplomate, American Board of Sleep Medicine dated June 19, 1999 with attachments (10 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     900223 - 900227  COG

 Period of Service Under Review :
Date of Enlistment: 900228               Date of Discharge: 930514

 Length of Service (years, months, days):

         Active: 03 02 17
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12 1/2           AFQT: 93

 Highest Rate: ET3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (3)    Behavior: 3.00 (3)                OTA : 2.80

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM (2), SSDR, JMU

 Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

910612:  NJP for violation of UCMJ, Article 92: Disobeyed a lawful order by turning a list in late.
         Award: Reduction to ETSN. No indication of appeal in the record.
910612:  Retention Warning: Advised of deficiency (Failure to follow the rules and regulation of the U.S Navy..), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
911210:  NJP for violation of UCMJ, Article 86: Absence from unit organization, or place of duty, violation of UCMJ Article 92: Failure to obey a lawful general order or regulation.
         Award: Restriction and extra duty for 20 days. Restriction and extra duty for 11 days suspended. No indication of appeal in the record.
920305:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 23Feb92.
         Award: Restriction and extra duty for 30 days. No indication of appeal in the record.
920814:  NJP for violation of UCMJ, Article 113: Misbehavior of a lookout.
         Award: Forfeiture of $482.70 per month for 2 months, restriction for 30 days, reduction to E-X. No indication of appeal in the record.
921110:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and a pattern of misconduct.
921110:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
930312:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense and a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under honorable conditions (general)
930407:  Commanding officer recommended discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense and a pattern of misconduct.

930430:  BUPERS directed the applicant's discharge under honorable conditions (general) 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 930514 under honorable conditions (general) 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 response to applicant’s issue 2, the Board found that the applicant’s violations of UCMJ Article 92 (failure to obey a lawful order) and Article 113 (misbehavior of a lookout) are serious offenses. The Board also found that the applicant’s incidents were not isolated. The applicant received 4 NJP’s in a 14 month period. Relief will not be granted concerning this issue.

In response to applicant’s issue 3, a medical diagnosis on active duty or during post-service, and whether proper or improper, is not an issue upon which this Board can grant relief. When reviewing a discharge, the Board does consider the extent to which a medical problem, diagnosed or undiagnosed while on active duty, might effect an applicant's performance and ability to conform to the military's standards of conduct and discipline. The Board does not consider the circumstances surrounding the applicant's diagnosis or any medical treatment given to the applicant to be of sufficient nature to exculpate the applicant from his misconduct of record. Relief is not warranted.

In response to applicant’s issue 1, 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 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, is considered. The applicant provided two character references, two academic references and one medical reference as documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of a verifiable employment record, documentation of community service and certification of non-involvement with civil authorities in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Also the applicant needs to provide more detailed documentation of his medical condition (obstructive sleep apnea). He is encouraged to continue with his pursuits and is strongly urged to apply for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief denied.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until
04 Mar 93, 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 113, for misbehavior of a sentinel, 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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