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NAVY | DRB | 2001_Navy | ND01-00741
Original file (ND01-00741.rtf) Auto-classification: Denied


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

ex-SH3, USN
Docket No. ND01-00741

Applicant’s Request
The application for discharge review, received 010503, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a documentary record discharge review. The applicant listed American Legion as the representative on the DD Form 293.

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: GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT – Commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (Equity Issue) This former member avers that his discharge is to harsh for his offenses as reflected by his JAG officers comments to him that his characterization would be made honorable over a period of time.

2. (Equity Issue) This former member further requests that the Board include provision of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Letter from Applicant
Reference Letter from Fianc'ee
Police Record Request (2)
Copy of Pre-Employment Checklist for COT Candidates

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     900119 - 900325  COG

 Period of Service Under Review :
Date of Enlistment: 900326               Date of Discharge: 920612

 Length of Service (years, months, days):

         Active: 02 02 17
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 35

 Highest Rate: SH3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (2)    Behavior: 3.80 (2)                OTA : 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NDSM

Days of Unauthorized Absence: 3

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

GENERAL UNDER HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

900327:  Retention Warning: Despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service civil involvement/drug abuse (SNM charged with no helmet, 1988, Philadelphia, PA. Paid $60.00 Fine.) Advised of deficiency, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
900330:  Retention Warning: Non-swim qualified. Advised of deficiency, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
         
910329:  NJP for violation of UCMJ, Article 86: UA from appointed place of duty on or about 2030, 910322, violation of UCMJ, Article 86: UA from unit on or about 2030, 910322 and returned on or about 1730, 910325, violation of UCMJ, Article 87: Missed ship's movement on or about 0600, 910325.
         Award: Restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
910503:  NJP for violation of UCMJ, Article 92: Dereliction in the performance of duty, found asleep on fire watch.
         Award: Restriction and extra duty for 45 days (15 days suspended for 3 months), reduction to E-X. No indication of appeal in the record.
910503:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 92-Dereliction in the performance of duty, sleep on fire watch), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
920228:  NJP for violation of UCMJ, Article 92: Failure to obey a general regulation (possession of a firearm).
         Award: Forfeiture of $450.00 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.

920521:  NJP for violation of UCMJ, Article 92: Failure to obey general regulation; violation of UCMJ Article 117: Provoking words.
         Award: Forfeiture of $250.00 per month for 2 months, restriction to NTTC for 30 days. No indication of appeal in the record.
920313:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense( i.e., missing ship's movement, failure to obey a lawful order (asleep on watch), and failure to obey a general regulation (possession of a firearm)).
920313:          Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.
920415:  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.
920507:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense, i.e., missing ship's movement, failure to obey a lawful order (asleep on watch), and failure to obey a general regulation (possession of a firearm).

920605:  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 920612 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).

Issue 1 and 2. The applicant states, his discharge was too harsh for his offenses, as reflected by his JAG officer’s comments to him that his characterization would be made Honorable over a period of time. Additionally, the applicant requests the Board to consider his post-service conduct, in assessing the merits of his application. 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. Therefore the discharge was proper and equitable. 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 clemency, 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 is denied.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 87 (missing ship’s movement) and Article 92 (failure to obey a general 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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