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NAVY | DRB | 2001_Navy | ND01-00657
Original file (ND01-00657.rtf) Auto-classification: Denied


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

ex-RMSA, USN
Docket No. ND01-00657

Applicant’s Request
The application for discharge review, received 010410, 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 011031. 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

 1. This letter is in correspondence to the enclosed DD293, requesting the review of my military records, and the character of my discharge. On November 16, 1994, I was discharged from the United States Navy with an Undesirable Discharge (General under Honorable Conditions), and the Reentry Code RE-4. The Undesirable Discharge was inequitable because it was based on one isolated incident within twenty-eight months of service. The actual incident pertaining to the misconduct on my behalf occurred before my enlistment and obligated service to the United States Navy. Also, the incident had been properly document at the time of enlistment, and should also be found in the results of the criminal background check conducted by the Naval Investigative Service whom granted me a Top Secret Security Clearance. Since my discharge from the U.S. Navy, I have had no further adverse action or criminal charges pending against me. My criminal record remains clean, my health is in great condition, and the State of South Carolina has reinstated my driver's license. Since reinstatement of all my driving privileges, I have not received any traffic citations whatsoever. My future plans are to successfully avoid trouble with the law, remain productive in my work place, consistently contribute to my community and church, and enroll in school to further my education. It is with great appreciation if my military discharge and reentry code will be taken into consideration for upgrade. If any other information is needed or required, I may be reached at the telephone number or address listed.


Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Photo copy of driver’s license

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     910427 - 910812  COG

 Period of Service Under Review :
Date of Enlistment: 910813               Date of Discharge: 941116

 Length of Service (years, months, days):

         Active: 03 03 04
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 43

 Highest Rate: RMSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.55 (4)    Behavior: 3.60 (4)                OTA: 3.55

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: 2

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 :

940328:  NJP for violation of UCMJ, Article 107: False official statement to SC Dept of Highway and Public Transportation on or about 930804.
         Award: Restriction and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.

940331:  Retention Warning: Advised of deficiency (You have received non-judicial punishment. The offenses involved falsifying official documents, which is in violation of Article 107 of the UCMJ. If you continue to engage in misconduct, your service record my reflect a pattern of misconduct as described in MILPERSMAN 3630600), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
940801:  NJP for violation of UCMJ, Article 86: UA from 940630-940701 [2days/S], violation of UCMJ Article 134: Failed to pay just debt in the sum of $585.00, from 940624 to present, to the state of South Carolina for outstanding traffic tickets.
         Award: Forfeiture of $100.00 per month for 2 months, restriction and extra duty for 7 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.

940804:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your non-judicial punishments of 940328 and 940801.
940810:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
940922:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge general under honorable conditions.

941017:  Commanding officer recommended discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense.

941104:  BUPERS 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 941116 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).

 The applicant’s issue states that the discharge was inequitable based on his 28 months of service. Additionally, he asserts the incident that caused his discharge occurred prior to his enlistment.

The Board found that the applicant’s discharge was equitably assigned. The applicant’s service was marred by two serious offenses committed on separate occasions while on active duty. The applicant was found guilty at NJP for Violation of UCMJ Article 107- False Official Statement on 940328. Following mast, the applicant was counseled and issued a discharge warning. On 940801 the applicant was found guilty at NJP for Violation of UCMJ Article 86 and 134. The applicant appeared before an Administrative discharge Board that unanimously found the applicant had committed misconduct, commission of a serious offense, and that the applicant should be discharged with a General (Under Honorable Conditions) character of discharge. The applicant’s Commanding Officer concurred with the Board’s recommendation, and BUPERS directed the discharge. The Board considered the applicant’s entire service record and found that the applicant’s misconduct outweighed his positive contributions. Relief is not warranted.

The applicant asserts the misconduct occurred prior to active duty. After careful review of the applicant’s entire service record including the NCIS Report, signed statements by the applicant, and the record of the administrative board, the NDRB found the applicant intentionally submitted false and forged documentation to the State of South Carolina
in order to escape traffic related penalties. The record shows that the applicant’s misconduct (making false official statements and forgery) occurred while he was on active duty. 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.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps. Reenlistment policy of the naval service is promulgated by the Commander, Navy Personnel Command, Pers-814, 5720 Integrity Drive, Millington, TN 38055. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief, is therefore, denied.

The applicant remains 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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