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NAVY | DRB | 2001_Navy | ND01-00169
Original file (ND01-00169.rtf) Auto-classification: Denied


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

ex-CTA3, USN
Docket No. ND01-00169

Applicant’s Request
The application for discharge review, received 001127, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010907. 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 (verbatim)

1. (Equity Issue) This former member opines that his characterization of service is too harsh for a single isolated incident of misconduct in light of his many years of creditable service. On this basis, he opines that upgrade to fully 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 this application.

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

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        910813 - 950216  HON
                  USN                       950217 - 961104  HON
         Inactive: USNR (DEP)     910103 - 910812  COG

 Period of Service Under Review :
Date of Enlistment: 961105               Date of Discharge: 990305

 Length of Service (years, months, days):

         Active: 02 04 01
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 40

 Highest Rate: CTA2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.00 (1)    Behavior: 1.00 (1)                OTA: 1.43

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, GCM, NMCOSR

 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 :

981008:  Special Court Martial
         Charge I: violation of the UCMJ, Article 92:
         Specification 1: Failure to obey a lawful order on 16Sep97, to wit: using government credit card for personal use.
         Specification 2: Failure to obey a lawful order on 15Oct97, to wit: using government credit card for personal use.
         Findings: to Charge I and specifications thereunder, guilty.
         Sentence: Confinement for 30 days and reduction to CTA3.
         CA 990201: Sentence approved and ordered executed, except for the execution of that part of the sentence adjudging confinement in excess of 25 days is suspended for a period of 6 months from 28 October 1998.
        
981018:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
981022:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
98xxxx:  Applicant submitted a conditional waiver request for a general (under honorable conditions) vice administrative discharge board.
981030:  Commanding officer forwarded conditional waiver request recommending approval.

981106:  Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

990225:  Commander, Navy Region Southeast directed the applicant's 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 990305 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’s first issue states: “(Equity Issue) This former member opines that his characterization of service is too harsh for a single isolated incident of misconduct in light of his many years of creditable service. On this basis, he opines that upgrade to fully honorable is warranted.” The record shows the applicant was found guilty at Special Court Martial of 2 specifications of violation of UCMJ Article 92. Violation of Article 92 is considered a serious military offense for which a punitive discharge may be awarded at Court Martial. The applicant received a General (Under Honorable Conditions) discharge. The NDRB does not find the discharge awarded “too harsh.” Further, in consideration of the applicant’s “many years of creditable service” the NDRB found that the negative aspects of the applicant’s service outweigh his positive contributions. Relief based on this issue is not warranted.

The applicant’s second issue states: “(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 this application.” Concerning the applicant’s request for an upgrade to discharge based on his post service conduct, the applicant failed to submit any documentation to support this request. The applicant included character references written prior to discharge. The NDRB is authorized to consider post-service factors in the re characterization of a discharge. 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, may be considered by the NDRB. The applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record. Relief is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is recommended .



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 92, failure to obey 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 " afls10.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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