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NAVY | DRB | 2000_Navy | ND00-00826
Original file (ND00-00826.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND00-00826

Applicant’s Request
The application for discharge review, received 000615, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant listed Civilian Counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010125. 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, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My test scores particularly the AFQT scores at 43 should have indicates to any recruiting officer or other individual in charge of recruiting that I would be unlikely to be able to understand and comprehend all of the necessary orders and instructions being given to me by the various individuals who would be my superiors. I feel that I was allowed to enlist to simply fill a quota for my recruiting officer and under those circumstances any trouble that I did get into while a member of the navy were occasioned not by lack of willingness to do as told but because I lacked the ability to comprehend exactly what was being asked of me at that period in time.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Record of Military Processing Form (2pgs)
Copy of High School Record
Copy of Evaluation Report & Counseling Record
Letters from Attorney at Law (3)
Copy of DD From 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               None
         Inactive: USNR (DEP)     980031 - 980408  COG

 Period of Service Under Review :
Date of Enlistment: 980409               Date of Discharge: 990426

 Length of Service (years, months, days):

         Active: 01 00 18
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 43

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.00 (1)    Behavior: 1.00 (1)                OTA: 1 .33

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: None

5.0 evaluation system used

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

981215:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty, violation of UCMJ Article 91: (5 Specs), willfully disobey a lawful order and (1 Spec) of disrespect in language and deportment toward a corporal.
         Award: 3 days Bread & Water. No indication of appeal in the record [EXTRACTED FROM CO'S MESSAGE IN CASE FILE].
990126:  Summary Court Martial for violation of UCMJ, Article 91: (7 specs) Failure to obey a lawful order 990108; 990111 x 2; 990112; 990114; 990117 x 2, violation of UCMJ Article 91: (2 specs) Disrespect toward a petty officer 990112; 990114.
         Sentence: Confinement for 30 days.
         CA (990226) Approved and ordered executed.

990215:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense [EXTRACTED FROM CASE FILE].
990215:          Applicant advised of his rights and having elected not to consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board [EXTRACTED FROM CASE FILE].
990311:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions [EXTRACTED FROM CASE FILE].

990402:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

990404:  COMCRUDESGRU TWELVE directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense [EXTRACTED FROM CASE FILE].

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990426 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 that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his inability to understand and comprehend all of the necessary orders and instructions given to him, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief is denied.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant 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.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE .

B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 91, willfully disobey and order 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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