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NAVY | DRB | 2001_Navy | ND01-00529
Original file (ND01-00529.rtf) Auto-classification: Denied


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

ex-ENS, USNR
Docket No. ND01-00529

Applicant’s Request
The application for discharge review, received 010314, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020517. 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: SECNAVINST 1920.6A

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. It is my contention that my discharge from the U.S. Navy was improperly characterized and that my offence does not rise to the threshold of a General discharge for misconduct.

Submitted by American Legion:
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 (short copy)
Applicant's undtd statement

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (NROTC)   960207 - 990110  To accept appointment
         Active: USNR              930622 - 930709  ELS (erron enl)
         Inactive: USNR            930521 - 930621  To report AcDu

 Period of Service Under Review :
Date of Officer Appointment: 990111
Date of Discharge: 000131

 Length of Service (years, months, days):

         Active: 01 00 11
         Inactive: None

 Age at Entry: 32                          Years Contracted: Indefinite

 Education Level: 16                        AFQT: 64

 Highest Grade: ENS

 Final officer Performance Evaluation Averages : All officer performance reports were available to the Board for review.

 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: SECNAVINST 1920.6A.

 Chronological Listing of Significant Service Events :
990514:  NJP for violation of UCMJ, Article 86: on or about 10 Apr 99, without authority, fail to go at the time prescribed to his appointed place of duty, to with: Challaghan Hall, Bldg 370, NS Newport, RI, for the purpose of three hours of mandatory study; violation of UCMJ Article 134: on or about 10 Apr 1999, willfully and unlawfully alter a public record, to wit: The Basic Division Officer course Night Study Log Sheet for Class 133, Section 14, week of 05 Apr 1999, by logging hours of mandatory study which he did not accomplish, to with 0900 - 1200, Saturday, 10 Apr 1999.
         Award: Punitive Letter of Reprimand. Did not appeal the imposition of NJP, but requested to submit a statement.

990518:  Applicant received Punitive Letter of Reprimand

990521:  CO, SWOS reported to CNP of applicant's imposed nonjudicial punishment for absence without leave and altering a public record in which he was awarded a punitive letter of reprimand. Applicant recommended for administrative separation from active naval service with a general discharge.

990607:  Applicant's Statement.

 990615:  Applicant advised CNP that he did not desire to make a statement concerning negative recommendation that he be separated from naval service.
990713:  Chief of Naval Education and Training advised CNCP that as a result of NJP action, applicant be administratively separated as a probationary officer from active naval service with a General discharge and recommended that he be required to reimburse the United States Government for costs incurred during his accession training at Northwestern University.

991119:  CNP advised the Secretary of the Navy that the Show Cause Authority has recommended him for separation as a probationary officer with a General (Under Honorable Conditions Discharge) by reason of misconduct - commission of a serious offense; and recommended applicant be discharge with a General Discharge and requested approval for recoupment of $17,623.83 in education expenses the applicant incurred while attending Northwestern University.

991221:  ASN (M&RA) approved applicant's discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000131 with a General (Under 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).

Issue 1. A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on one occasion. The applicant’s offense included a breach of integrity, which the Board found clearly constitutes a significant negative aspect of the applicant’s conduct. The Board found the applicant’s overall record of service during his one year on active duty was below average. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the standards which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief denied.

Issue 2. The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. 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 relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. 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.

Pertinent Regulation/Law (at time of discharge)

 A. The Secretary of the Navy Instruction 1920.6A of 21 November 1983 (Administrative separation of Officers), establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 15 October 1981.
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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