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NAVY | DRB | 2000_Navy | ND00-00757
Original file (ND00-00757.rtf) Auto-classification: Denied


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

ex-PHAN, USN
Docket No. ND00-00757

Applicant’s Request
The application for discharge review, received 000523, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant designated the American Legion as the 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 unanimous that the character of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/COMPLETION OF REQUIRED ACTIVE SERVICE, authority: NAVMILPERSMAN, Article 1910-104.

The NDRB did note an administrative error on the original DD Form 214. Block 18, Remarks, should contain the following statement: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 21SEP89 UNTIL 17JUN03”. The original DD Form 214 should be corrected or reissued as appropriate.





PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. (Equity Issue) This former member avers that his command failed to assist him, due to racism, with mitigating personal problems that was a contributing factor to his misconduct and subsequent GD. On this basis, he opines that upgrade of his character of service to full honorable is warranted.

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Applicant's ltr to the American Legion dtd 26 Jun 2000
Senator M_ C_ ltr to the Applicant dtd Jan 4, 1999
NAACP ltr to the Applicant dtd Jan 7, 1999
Congressman J_ L_ ltr to the Applicant's Mother dtd Jan 14, 1999
COMNAVPERSCOM ltr to Honorable M_ C_ dtd Jan 21, 1999
Senator M_ C_ ltr to the Applicant dtd Feb 1, 1999
Congressman J_ L_ ltr to the Applicant dtd Jun 7, 1999
Congressman R_ C. S_ ltr to the Applicant dtd Jul 16, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        890921 - 930617  HON
         Inactive: USNR (DEP)     890331 - 890920  COG

 Period of Service Under Review :
Date of Enlistment: 930618               Date of Discharge: 990217

 Length of Service (years, months, days):

         Active: 05 08 00
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4 (20 months extension)

 Education Level: 12                        AFQT: 65

 Highest Rate: PH2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.8 (1)     Behavior: 4.0 (1)                 OTA: 3.8 (4.0 evals)
                  3.0 (3)                  3.0 (3)                           3.29 (5.0 evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR(2), SWASM(2), GCM(2), MUC, Navy "E" (2), NM, KLM(2)

Days of Unauthorized Absence: 2

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

GENERAL (UNDER HONORABLE CONDITIONS)/COMPLETION OF REQUIRED ACTIVE SERVICE, authority: NAVMILPERSMAN, Article 1910-104.

 Chronological Listing of Significant Service Events :

970618:  Extended enlistment for 20 months, making expiration of enlistment 990217.
980805:  Med Dept, USS MOUNT WHITNEY: Medically screened for recruiter duty.
980915:  NJP for violation of UCMJ, Article 86 (2 Specs):
Specification 1 - on or about 98SEP03 fail to go at the time prescribed to appointed place of duty
Specification 2 - unauthorized absence from unit from 98SEP01 to 98SEP03.
Violation of UCMJ Article 128: assault consummated by a battery.
         Award: Restriction and extra duty for 30 days, reduction to E-4. No indication of appeal in the record.
981217:  NJP for violation of UCMJ, Article 128: assault and battery.
         Award: Forfeiture of $615 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
990217:  Applicant discharged with a General (Under Honorable Conditions) by reason of completion of required active service, was not recommended for reenlistment and given an RE-4 reenlistment code.


Complete discharge package unavailable.


PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 990217 with a general (under honorable conditions) due to completion of required active service (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’s representative submitted the following as issue 1: (Equity Issue) This former member avers that his command failed to assist him, due to racism, with mitigating personal problems that was a contributing factor to his misconduct and subsequent GD. On this basis, he opines that upgrade of his character of service to full honorable is warranted. 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 its issuance, and that his rights were prejudiced thereby. Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant. The Board also found nothing in the records nor did the applicant submit any supporting documentation that showed that his personal problems were of sufficient magnitude that they could not be resolved through standard military channels or by the applicant's chain of command. Due to the fact that the applicant had an excellent record prior to his misconduct, the applicant received a general discharge for completion of service vice an other than honorable for commission of a serious offense (violation of UCMJ Article 128: assault and battery). The Board will not grant relief on the basis of this issue.

 The applicant’s representative submitted the following as issue 2: ( Equity Issue ) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). 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 did not provide any documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, 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. Therefore no relief will be granted. 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. Relief denied.

Pertinent Regulation/Law (at time of discharge)

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 until 26 March 2000, Article 1910-104 (previously 3620150), Separation by Reason of Expiration of Active Obligated Service (EAOS).

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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