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NAVY | DRB | 2001_Navy | ND01-00734
Original file (ND01-00734.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND01-00734

Applicant’s Request
The application for discharge review, received 010508, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Montgomery, AL. The applicant listed Disabled American Veterans as the representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington, DC Area. The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011127. 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: UNCHARACTERIZED (ENTRY LEVEL SEPARATION)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. After a review of the Former Service Member (FMS) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the request of the appeallant of an upgrade of his Uncharacterized discharge to that of General Under Honorable Conditions.

A review of the record reflects that the FSM entered the military service on January 26, 2000, with participation in the United States Navy, and was effectively discharged from said on March 7, 2000, by reason of misconduct.

It is the FSM's desire to receive equitable relief of his current discharge, in concert with this request we ask that consideration be given to a General discharge. As the record reflects the FSM performed his duties well, his behavior was somewhat lacking.

We believe there may have been some impropriety towards this FSM, by the unit of record. In that no-training or corrective action was given to try and salvage this recruit. The later being the actions that would take place in the Armed Forces today. If the FSM had be given 30 day confinement, with forfeiture of pay it may have been sufficient to rehabilitate, and change the attitude he maintained, providing the Navy with a creditable and efficient sailor.

But no probative action were taken by the supervisor authority of the time, to salvage what may have been an outstanding sailor once his attitude was changed. Additionally if after 30 days confinement the FMS's attitude was still in place, then administrative measure could have then been taken to separate the appeallant from military service. Therefore, we ask that equitable relief be granted to the FSM in the form as described on the application.

We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               None
         Inactive: USNR (DEP)     000119 - 000125  COG

 Period of Service Under Review :
Date of Enlistment: 000126               Date of Discharge: 000307

 Length of Service (years, months, days):

         Active: 00 01 12
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

Education Level: 12                        AFQT: 32

 Highest Rate: FR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB                  Behavior: NOB             OTA: NOB

Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: None

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

UNCHARACTERIZED (ENTRY LEVEL SEPARATION)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

000223:  NJP for violation of UCMJ, Article 128: Did on or about 000222, unlawfully strike SR R___ V. P____, USN, by kicking him in the face with his foot.
         Award: Forfeiture of $217.00 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
000301:  Applicant notified of intended recommendation for discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense.
000301:          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.
000302:  Commanding Officer, Recruit Training Command authorized discharge uncharacterized (entry level separation) 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 000307 uncharacterized (entry level separation) 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. During the applicant’s first month on active duty, while still in recruit training, the applicant was evaluated as making poor progress and received non-judicial punishment for kicking another recruit in the head. This was considered a serious offense and his commander determined the applicant had no potential for further service. The resulting separation proceedings were proper and equitable. Relief denied.

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. 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. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.


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. 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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