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NAVY | DRB | 2001_Navy | ND01-00506
Original file (ND01-00506.rtf) Auto-classification: Denied


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

ex-ABFAA, USN
Docket No. ND01-00506

Applicant’s Request
The application for discharge review, received 010313, 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010928. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. I D____ B____, would like to attend school. The only way I can attend school is to get a upgrade of my discharge from the Navy. I did have a G.I. Bill but the only way I can receive this is to get this upgrade. I put my money aside for this and I would like to try and so something else with my life. (P.S.) If you have time please look and see why I got discharged for self defense. One of my shipmates bit me on my chest because I was winning in the sega game, and he got mad and grab me and bit me there was blood shed so I punched him 1 time. Then I proceeded to medical & the master at arm shack and told. Thank you, there were witnesses about 10.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     911015 - 920907  COG

 Period of Service Under Review :
Date of Enlistment: 920908               Date of Discharge: 950701

 Length of Service (years, months, days):

         Active: 02 10 24
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (2 month extension)

 Education Level: 12                        AFQT: 31

 Highest Rate: ABFAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.90 (4)    Behavior: 3.15 (4)                OTA: 3.35

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, NDSM

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

930209:  NJP for violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty, violation of UCMJ Article 92: Failure to obey a lawful order/regulation.
         Award: Forfeiture of $190.00 per month for 1 month, restriction and extra duty to BRKS S-238 for 14 days (suspended for 6 months). No indication of appeal in the record.
930518:  UA from 0645-0900, 930518.

931106:  UA from 0700-1100, 931106.

931124:  Civil conviction for aggravated assault
                  Plea: Plead no contest, withheld adjudication of guilt.
 Sentence: $115.00 fine; 6 months probation; anger control; pay cast within 3 months.

931211:  NJP for violation of UCMJ, Article 86: UA from 0645-1845, 931004.
         Award: Restriction and extra duty for 10 days. No indication of appeal in the record.

931211:  Retention Warning: Advised of deficiency (As evidenced by your misconduct in which you were awarded CO's NJP on 931211 for a Violation of the UCMJ, Article 86), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940216:  NJP for violation of UCMJ, Article 92: Willfully failed to stay awake on #4 JP5 pump room watch.
         Award: Restriction and extra duty for 45 days. No indication of appeal in the record.

940216:  Retention Warning: Advised of deficiency (As evidenced by your misconduct in which you were awarded CO's NJP on 940216 for a Violation of the UCMJ, Article 92), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
941215:  NJP for violation of UCMJ, Article 86: UA from appointed place of duty, violation of UCMJ Article 92: Failure to obey lawful order.
         Award: Forfeiture of $190.00 per month for 1 month, restriction and extra duty for 14 days (suspended for 6 months). No indication of appeal in the record.

950523:  NJP for violation of UCMJ, Article 128: Assault on 950521.
         Award: Forfeiture of $478.00 per month for 1 month, restriction and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.

950531:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, misconduct due to a pattern of misconduct and misconduct due to civilian conviction as evidenced by all punishments unde the UCMJ in your current enlistment.
950601:          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.
950601:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, misconduct due to a pattern of misconduct and misconduct due to civilian conviction.

950614:  BUPERS directed the applicant's discharge under other than 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 950701 under other than honorable conditions for misconduct due to commission of a serious offense (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 (C and D).

 The applicant requested a change in discharge to obtain educational benefits. The Board can not grant relief based on this issue. Relief on this basis is not warranted.

Contrary to the applicant’s assertion that he was discharged due to one incident, the Board found the applicant had five NJP’s in his enlistment. The Board found no impropriety or inequity in the discharge. The Other Than Honorable discharge accurately characterizes the applicant’s service. Relief is not warranted.

 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, 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 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. 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.

C. 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.

D. 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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