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NAVY | DRB | 2001_Navy | ND01-00880
Original file (ND01-00880.rtf) Auto-classification: Denied


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

ex-ITSN, USNR(TAR)
Docket No. ND01-00880

Applicant’s Request
The application for discharge review, received 010625, 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 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, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. Would like the board to consider my circumstances, while on board the U.S.S. Oriole I was only discipline once and that was for the court-martial. Also during that period I also was receiving medical treatment for depression. In addition, the command neglected to resolve my pay problems, such as not entitling to my enlisted bonus (SRB) and time in service pay. If the board needs to know more information. Im more than happy to comply to inquiries. Sincerely

2. Dear Sir or Madam:

The following issues are the reasons I believe my discharge should be upgraded to a Honorable R-E-1. The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the following evidence I am submitting.
First and foremost, I feel clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge. I feel the punishment I received was too severe compared with the current standards. I also feel my record of court-martial convictions indicate only isolated offenses. I feel my command abused its authority when it decided to discharge me with a bad discharge. My command did not follow the proper discharge regulations. Secondly, I had a past enlistment with the Air National Guard for a one-year and received an Honorable Discharge. I feel my ability to serve the U.S. Navy was impaired because I was not working in the field I trained for. I spent my entire enlistment overseas, Gaeta, Italy and Guantanamo Bay, Cuba. During that period of time I was on board the U.S.S. Belknap (Comsixthfleet) and worked for a three star admiral. I received a letter of commendation and a few letters of appreciation. There were many other acts of merit during my service. My average conduct and efficiency ratings, along with my proficiency marks were good.
In addition, I feel I have been a good citizen since my discharge. I am working for the State Government and have also been attending Harrisburg Area Community College. The reason I elected to return to the U.S. Navy was because I enjoyed it and missed serving my country. I would someday like to continue my career in the Navy Reserve Unit. In conclusion, I feel that when you review my service record you will come to the conclusion that the commands actions were unwarranted and unfair. For a service member to be a few hours late shouldn't cause a discharge. I admit, I was totally wrong, I wish I would have the chance to do it all over again. Thank you in advance for your consideration. The following are the reasons I believe my discharge should be upgraded to Honorable RE-1.

3. Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.

4. Under current standards, I would not receive the type of discharge I did.
5. My average conduct and efficiency ratings were good.
6. My average proficiency marks were good.
7. I received awards or decorations.
8. I received letters of recommendation.
9. There were other acts of merit.
10. I had a prior Honorable Discharge from the military.
11. I have been a good citizen since my discharge.
12. My record of court-martial convictions indicate only isolated or minor offenses.
13. My record of AWOL/UA indicates only minor or isolated offenses.
14. My ability to serve ewes impaired because I was not working in the field I trained for.
15. The punishment I got at discharge was too harsh-it was much worse than most people got for the same offense.
16. The punishment I got was too severe compared with todays standards.
17. My command abused its authority when it decided to discharge me and decided to give me a bad discharge.
18. My discharge was improper because the command did not follow the discharge regulations.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (current enlistment)
Copy of DD Form 214 (previous enlistment)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               860702 - 910419  HON
                  USNR             910420 - 930927  HON
         Inactive: USNR (DEP)     850928 - 860701  COG
                  USNR (DEP)      970224 - 990323  COG

 Period of Service Under Review :
Date of Enlistment: 990324               Date of Discharge: 000810

 Length of Service (years, months, days):

         Active: 01 04 17
         Inactive: None

 Age at Entry: 31                          Years Contracted: 4

 Education Level: 12                        AFQT: 36

 Highest Rate: IT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

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

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

000207:  Special Court Martial
         Charge II: violation of the UCMJ, Article 91:
         Specification 1: Willfully disobeyed a lawful order from a superior petty officer to report to USS ORIOLE for 0800 hurricane mooring, on 21Aug99.
         Findings: to Charge II and specification thereunder, guilty.
         Sentence: HL for 60 days without confinement, forfeiture of $100 per month for 2 months, reduction to ITSN, and letter of reprimand.
         CA 000207: Sentence approved and ordered executed.

000627:  Applicant violated Article 112A (2 specifications): Wrongful use and possession of marijuana on 27Jun00.

000717:  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 drug abuse.
000717:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
000717:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and drug abuse.

000802:  CNPC 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 000810 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).

 Issues 1,3, 12, 13. In response to the applicant’s issues, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency (C). The applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. Relief denied.

 Issues 2, 4-10, 15-18. The Board found no evidence that the separation authority did not follow proper regulations. 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. The applicant’s service was marred by conviction at a Special Court Martial for commission of a serious offense. Further, the applicant used illegal drugs. The drug abuse alone warranted processing for separation, normally under other than honorable conditions. The Board found the discharge received was equitable and the same as many sailors and Marines receive for similar offenses. 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. An upgrade to honorable would be inappropriate. Relief denied.

Issue 11. 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.


Issue 14. The Board found no correlation between the applicant not being able to serve in the rating he was trained for and his misconduct. Therefore, relief is denied based on this issue.


 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 28, effective
30 Mar 00 until 29 Aug 00, 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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