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NAVY | DRB | 2000_Navy | ND00-00871
Original file (ND00-00871.rtf) Auto-classification: Denied


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

ex-EM3, USN
Docket No. ND00-00871

Applicant’s Request
The application for discharge review, received 000705, requested that the characterization of service on the discharge be changed to Honorable and the reason for the discharge be changed to administrative in nature. 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 010313. 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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. Unjust reason for separation - paragraph #18 states "misconduct due to commission of a serious offense". I received captain's mast for possession of 3 false ID(s), only one actually belonged to me, the other two were used by my room-mates. My punishment was $200 fines and 30 days restriction/extra duty which I served without fail. Captain's mast took place in april 1999 at the Naval Sub School in Groton, CT. I was then assigned to the USS HARRY TRUMAN. Due to a serious medical problem with my finger tendons I was applying for medical/admin discharge. Suddenly in October 1999, I was informed that I would be discharged under general conditions for the offense listed above. I admit that I altered (false) ID was used to get into clubs. It was found during a health and welfare inspection in my desk. I accepted non-judicial punishment and served it without incident. Defense counsel encouraged me to accept the punishment which was described as minor in nature. I cannot believe that this offense equals "misconduct due to commission of a serious offense". In my view the admin dept used the 6 months old offense to get rid of me because my tendon problem was affecting my job. Without sounding like a jerk, I was promoted to EM3 (E-4) ahead and held that rank until discharge again how can I commit a serious offense and stay in rank. Request new DD 214 with honorable and some appropriate statement as reason for the discharge other than serious offense. Also request change to reentry code to allow reserve service.

2. CO Capt O____ CO USS HARRY S TRUMAN approved my request for administrative discharge, the legal department turned that request into a general discharge that I was forced to accept under the threat that if I did not, I would receive an other than honorable discharge.

3 The legal department told me that a general (under honorable conditions) would not cause a loss of benefits, namely educational, (the basis of my enlistment). They stated that "as long as it says honorable in it, it still is" I know now that I will not receive my GI Bill/College fund and may not be able to attend college because of it.
4 The reelistment code was not explained to me before I was urged to sign papers. It was stated that "it will be explained later" I wish to join the naval reserves, but cannot due to the code.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Preliminary Inquiry Report (3pgs)
Copy of Special Request Authorization
Applicant Request for Separation Letter (2pgs)
Copies of DD Form 214 (2)
Copies of Medical Documents (4 pgs)
Letter from Congressional Liaison Office Millington, TN
Letter from National Personnel Record Center to Honorable R___ B_____
Letter from Congressman R____ B____
Copy of Record Release Authorization
Copies of Service/Medical Records (58pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               None
         Inactive: USNR (DEP)     950925 - 960903  COG

 Period of Service Under Review :
Date of Enlistment: 960904               Date of Discharge: 991025

 Length of Service (years, months, days):

         Active: 03 01 22
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 91

 Highest Rate: EM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (3)    Behavior: 3.00 (3)                OTA: 3 .06

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

980109:  Retention Warning: Advised of deficiency (You were involved in an incident at BEQ 492 on 971231 in which you admitted to drinking. You also disclosed to the command DAPA drinking at other times as well in most cases 1 or 2 beers), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980128:  NJP for violation of UCMJ, Article 134: Drunkenness.
         Award: Forfeiture of $300.00 per month for 1 month, restriction and extra duty for 30 days, reduction to E-X. No indication of appeal in the record.

980128:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Articles 92, violation of failure to obey other lawful written order, 134, Drunkenness), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990414:  NJP for violation of UCMJ, Article 134: False or official pass offense.
         Award: Oral admonition, forfeiture of $200.00 per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.
990414:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Articles 134, False or unauthorized pass offense-wrongful use or possession), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.






















PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 991025 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 4 issues listed on his form DD 293.

Issue 1. The applicant states he can’t believe his false military I.D. card misconduct equals misconduct due to commission of a serious offense. He wants a new DD 214 with honorable, an appropriate statement as to the reason for discharge documented as something other than serious offense, and the reenlistment code changed to allow reentry into the reserve service. The Board does not have the applicant’s discharge package, and must assume regularity in the conduct of government affairs. Violation of UCMJ, Article 134 (False or unauthorized pass offense) is a serious offense misconduct, as stated in the Uniform Code of Military Justice, therefore the characterization and reason the applicant was discharge was proper and equitable. Additionally, the NDRB does not have the authority to change re-enlistment codes. The applicant will have to petition the Board of Correction of Naval records to have his reenlistment code changed. Relief denied.

Issue 2. The applicant states the Commanding Officer, USS HARRY S TRUMAN approved his request for administrative separation and the legal department turned it into a General (under Honorable condition) discharge. The Board determined that, the applicant received an administrative separation and based on the applicant’s service record and supporting documentation, a General discharge, under Honorable conditions, was the appropriate characterization of the applicant’s service. Relief denied.

Issue 3. The Board determined this is not a decisional issue and requires no further comment. Relief denied.

Issue 4. The applicant states he wishes to join the Naval reserves. The Board is under no obligation to upgrade an individual’s discharge to allow him/her the opportunity to join any branch of military service. Relief denied.

 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. 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.

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. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 134 (False or unauthorized pass offense), 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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