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NAVY | DRB | 2000_Navy | ND00-00870
Original file (ND00-00870.rtf) Auto-classification: Denied


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

ex-AZAR, USN
Docket No. ND00-00870

Applicant’s Request
The application for discharge review, received 000629, 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 010215. 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)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. item 24) character of service changed to honorable

2, item 28) Separation changed to discharge for the good of the service

Please see attachement.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (Member 1 and 4) (2 copies)
Statement from applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     940729 - 940821  COG

 Period of Service Under Review :
Date of Enlistment: 940822               Date of Discharge: 960725

 Length of Service (years, months, days):

         Active: 01 11 04
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 61

 Highest Rate: AZAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                           Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

950524:  NJP for violation of UCMJ, Article 86: Go from appointed place of duty on 0500, 6Apr95, to wit: APOOW watch from 2230-0700.
         Award: Forfeiture of $427 per month for 2 months, extra duty for 45 days. No indication of appeal in the record.
960417:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer on 20Feb96, to wit: hit superior petty officer, violation of UCMJ, Article 86: Failed to go to 1200 medical appointment on 8Feb98, violation of UCMJ, Article 92: Failure to obey a lawful order on 29Mar96, to wit: departed without permission.
         Award: Forfeiture of $437 per month for 2 months, restriction and extra duty for 45 days, reduction to AZAR. No indication of appeal in the record.
960710:  Applicant notified of intended recommendation for discharge General (under Honorable conditions) by reason of misconduct due to the Commission of a serious offense.
UNDATED:         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.
960729:  Commanding officer directed discharge General (under Honorable conditions) by reason of misconduct due to the Commission of a serious offense. Commanding officer’s comments (verbatim): SNM was an administrative burden on NWTS and should never have been allowed to graduate from Basic Training.

960822:  Message from BUPERS to NSWS China Lake, CA: Note: Reason for processing must be listed on statement of awareness. Per NAVADMIN 140/96, a pattern of misconduct is now reclassified as two or more NJPs within the current enlistment. Therefore, mbr should also have been processed for Pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960725 General (under 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).

The applicant had two issues on form DD 293.

Issues 1 and 2. The applicant states, he wants to change item 24, character of service, to “Honorable” and item 28, reason for separation, to “for the good of the service.” The following is provided for the benefit of the applicant. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. The applicant was found guilty, at two separate NJPs, of Article 86 (unauthorized absence), Article 91 (hitting a superior petty officer) and Article 92 (failure to obey a lawful order), during his enlistment. Additionally, 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 civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. The applicant did not provide any of these documents. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.

The applicant wrote a personal letter describing his experience in basic training and ending with a statement that potential employers do not hire him because his military record reflects he committed a felony. The applicant’s his record shows, he was found guilty, at NJP, for hitting a senior Petty Officer. That was assault and considered a serious offense in the military. The applicant was justifiably discharged with characterization of his service as General (under Honorable conditions) for misconduct. Based on the applicant’s records and all supporting documents provided in this case, his discharge was proper and equitable. Relief is denied.

 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. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 91 (striking or assaulting a Petty Officer) and Article 92 (failure to obey a lawful 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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