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NAVY | DRB | 2000_Navy | ND00-01082
Original file (ND00-01082.rtf) Auto-classification: Denied


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

ex-ETSN, USN
Docket No. ND00-01082

Applicant’s Request
The application for discharge review, received 000922, 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 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 3630600.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. I do not believe my discharge was fair, due to when I agreed to this discharge I was told that because it was a favorable discharge and would not affect my GI Bill elegibility. After my request for GI Bill benefits was denied I found this not to be true. I am currently enrolled in the JATC Electrical Program.

2. My LCPO regarded me as unfit for military service, on one evaluation he gave me score of 1. I would like for you to review my scores in the schools. I attended as wel as the fact that I stood as well as was qualified for all watches as required by me. This is the only documented biasness I could show. Hopefully aiding my claim to bias against me shown by my LCPO ETC V_


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     940207 - 940315  COG

 Period of Service Under Review :
Date of Enlistment: 940316               Date of Discharge: 961028

 Length of Service (years, months, days):

         Active: 02 07 13
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 86

 Highest Rate: ET3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (1)    Behavior: 3.40 (1)                OTA: 3.40       (4.0 evals)
 Performance: 1.00 (2)    Behavior: 1.00 (2)                OTA: 1.47       (5.0 evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, NER

 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 :

940317:  You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your preservice civil involvement: petty theft. Detained one hour, released to parents, no court action, paid $1.75 for item. However, any further deficiencies in performance or conduct may result in processing for administrative separation.

960322:  NJP for violation of UCMJ, Article 92 (2 specs): (1) Fail to obey a lawful order by wrongfully possessing a pair of hair clippers that were not safety checked on 10Feb96, (2) Failed to properly perform his mandatory physical readiness training on 30Jan96.
         Award: Restriction and extra duty for 10 days, reduction to ETSN. Reduction suspended for 3 months. No indication of appeal in the record.
960325:  Retention Warning: Advised of deficiency (Two specifications of violation of order or regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960621:  Vacate suspended reduction to ETSN awarded at CO's NJP of 22Mar96 due to continued misconduct.

 960624:  NJP for violation of UCMJ, Article 91: Disrespectful in language to STG2, to wit: by saying "you are a fucking", violation of UCMJ, Article 92: Derelict in performance of duty on 16May96, to wit: going to sleep in the Helo Control Tower during line handling, violation of UCMJ, Article 107: False official statement on 3May96, to wit: told the Recorder that he did 50 push-ups
         Award: Forfeiture of $537 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
960815:  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.
960815:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
960926:  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 and found that the applicant had not committed a defective enlistments and inductions-erroneous enlistment, that the misconduct warranted separation, and recommended discharge general (under honorable conditions).

961021:  Commanding officer directed discharge general (under honorable conditions) 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 961028 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).

In the applicant’s issue 1, the applicant was briefed on the Veterans’ Educational Assistance Act of 1984 (G.I. BILL). Specifically, he was briefed that an Honorable discharge after completion of 36 months on active duty would be required for entitlement to benefits under the G.I. BILL.

 In the applicant’s issue 2, the Board did review the applicant’s evaluations, as part of the review of the service record and all documentation surrounding the applicant’s career. The applicant had an evaluation averaging 3.4 (on 4.0 scale) and 1.0 (on 5.0 scale). The Board considered these evaluations to be average-below average. Although the applicant complains of bias against him, the applicant presented no evidence, nor did the Board find evidence of bias or prejudice during the applicant’s 2 years and 7 months in the Navy. No relief will be granted based on this issue.

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 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 92, disobeying an 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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