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NAVY | DRB | 2001_Navy | ND01-00826
Original file (ND01-00826.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND01-00826

Applicant’s Request
The application for discharge review, received 010604, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The applicant listed American Legion 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) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020110. 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his overall service record is sufficient to warrant release under honorable conditions.

2. (Equity Issue) This former member further requests that the Board apply provision 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:
Cornell University Bachelor of Science degree, dated May 26, 1996
Phi Theta Kappa Society, December 3, 1993
National Hispanic Scholarship Fund Scholar, undated
Michigan State University Human Resources Education and Training Center, School of Labor and Industrial Relations Certificate, January 24-28, 2000
Letter of recommendation from Cornell University Professor S____, September 27, 1995
Selection to Golden Key National Honor Society, October 16, 1995 with certificate
Letter of recommendation from Bell South Communications Mr. S___, July 1, 1998
Letter of recommendation from R___ L__, Associate Professor at Cornell University, dated December 20, 1995.
Village of Hempstead, N.Y., recommendation letter from Mayor G____ dated April 2, 2001
Hempstead Hispanic Civic Association, Character Letter, undated
Letter of Recommendation from M____-B___ Mr. D___ B____, September 12, 2000
Letter of Recommendation from M____ Electric, Ms J____ E____, April 17, 2001
National Hispanic Scholarship Fund award, September 24, 1994
Line of Duty Injury report, February 6, 1991
First Endorsement of Letter of appreciation, August 4, 1988
Second Endorsement of Letter of appreciation, August 12, 1988
Letter of appreciation, July 28, 1988
Enlistment Performance Evaluation, July 12, 1988
Enlistment Performance Evaluation, August 13, 1989
Discharge certificate DD Form 214, June 10, 1991
Administrative remarks 4 pages undated
Administrative remarks 1 page, July 6, 1990
Administrative remarks 1 page, August 5, 1989

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     871028 - 880124  COG

 Period of Service Under Review :
Date of Enlistment: 880125               Date of Discharge: 910610

 Length of Service (years, months, days):

         Active: 03 04 16
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (15 months extension)

 Education Level: 12                        AFQT: 56

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (4)    Behavior: 3.36 (6)                OTA : 3.36

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR(2 ND )

Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

880512:  NJP for violation of UCMJ, Article 121: On or about 880428, steal property of the Navy Exchange.
         Award: Forfeiture of $350.00 per month for 2 months, correctional custody for 30 day. No indication of appeal in the record.

890805:  Civil Conviction: [General District Court Traffic Division Municipal Center Virginia Beach, VA] for driving under the influence.
 Sentence: $250.00 fine plus court cost, 30 days in jail (suspended), 6 months driving privileges suspended.
900706:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful general regulation to wit: PARA 2201, Navy Uniform Regulations, DTD 850718, by wrongfully showing up for work unshaven and in a wrinkle uniform.
         Award: Restriction and extra duty for 45 days. No indication of appeal in the record.

910206:  NJP for violation of UCMJ, Article 91: Willfully disobey a lawful order from a Chief Petty Officer on 910104.
         Award: Forfeiture of $100.00 per month for 1 month, reduction to E-2. No indication of appeal in the record.
910209:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to civilian conviction.
910209:          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.
910213:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to a civilian conviction.

910320:  CNMPC 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 910610 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).

Issue 1. Under other than honorable conditions 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 three occasions and a civilian conviction on another occasion. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service. The applicant stated he was young and immature, however the Board found no reason why the applicant should not be held accountable for his actions. 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. An employment record, documentation of community service, certification of non-involvement with civil authorities and proof drug /alcohol rehabilitation, if applicable, are examples of additional documents that should have been provided to receive consideration for relief, based on post-service conduct. Although the applicant did provide several of the documents listed above, the Board determined the applicant’s post-service conduct was insufficient 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. Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective
21 Aug 89 until 14 Aug 91, 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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