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NAVY | DRB | 2001_Navy | ND01-00930
Original file (ND01-00930.rtf) Auto-classification: Denied


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

ex-EM3, USN
Docket No. ND01-00930

Applicant’s Request
The application for discharge review, received 010712, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020130. 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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I cannot provide an Honorable DD-214 for my first term of service - it does not exist to my knowledge, though I did STARR reenlist which requires an honorable discharge.

2. I need my final discharge upgraded to allow the required time for me to complete school and obtain my degree. (if I am granted my GI Bill based on my first term of service, I'll have less time to draw on my GI Bill)

3. Everyone I have spoken to in the Dept of VA has agreed that I should get my GI Bill (one letter enclosed to attest to that)

4. I am asking only for a "one step" upgrade in the character of my final discharge so that I may make the best of my situation in providing a good life for myself and my children.

5. Up and until my last 6 months of service, my term in the Navy was exemplary having received two good conduct awards, numerous letters of commendation, and qualifying in all watches available to me, as well as holding multiple command wide collateral duties (even into the last 6 months where my personal life overcame me and my work and performance/reputation suffered)

6. I am not seeking any benefits from the military other than the use of my GI Bill wherein the best possible use of that requires a change of character of service from " General" to "Honorable" please.

7. (VFW's Additional Issue) The Veterans of Foreign Wars of the United States appreciates the opportunity to have conducted a review of the aforementioned applicants case file on October 3, 2001. The following issues are presented in addition to any/none listed in item 8, DD Form 293. IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.3, Equity of Discharge.

The Veterans of Foreign Wars of the United States express purpose in providing this review, and any other submittals or opinions of record, is to aid the applicant in resolving any improprieties or inequities in the character and basis for discharge. After reviewing all available evidence, we ask the Board to resolve any doubt in favor of the applicant and to grant the action requested as entitled under Title 10 U.S.C., Section 1553.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Dept of Veterans Affair
Service Related Documents (3pgs)
Letter from Dept of Veterans Affairs (Educational Assistance)
Letters of Recommendations (4)
Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        900112 - 920111  HON
         Inactive: USNR (DEP)     890414 - 900110  COG

 Period of Service Under Review :
Date of Enlistment: 920112               Date of Discharge: 970703

 Length of Service (years, months, days):

         Active: 05 05 22
         Inactive: None

 Age at Entry: 20                          Years Contracted: 6

Education Level: 12                        AFQT: 80

 Highest Rate: EM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.85 (4)    Behavior: 3.90 (4)                OTA: 4 .00 (4.0 Evals)
 Performance: 3.00 (2)    Behavior: 3.00 (2)                OTA: 3 .00 (5.0 Evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: GCA(2),LOC(3), NDSM, SSDRw1b*, ESBI, SSBN, DPIw3g*

Days of Unauthorized Absence: None

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

GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

 Chronological Listing of Significant Service Events :

920112:  Reenlisted onboard USS SIMON BOLIVAR (SSBN641 (GOLD) for 6 years.

950407:  Record of Enlisted Counseling: Private Indebtedness.

960426:  Record of Enlisted Counseling: Performance, Responsibilities.

960730:  Record of Enlisted Counseling: Performance, Personal Behavior.

960808:  Record of Enlisted Counseling: Performance, Responsibilities, Personal Behavior.

960809:  Record of Enlisted Counseling: Personal Behavior.

970615:  NJP for violation of UCMJ, Article 86: Abandoning watch or guard, violation of UCMJ Article 92: Dereliction in the performance of duties.
         Award: Restricted to Base for 45 days, extra duty for 45 days, reduction to E-4. No indication of appeal in the record.

970616:  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 CO's NJP for Violation of Article 92 (Dereliction in the Performance of Duties) on 970615.
970616:          Applicant advised of his rights and having elected not to consult having consulted 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.
980129:  Officer in Charge recommended 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 970703 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).

Issue 1. The Board did note an administrative error on the original DD Form 214. Block 18, Remarks, should contain the following statement: "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 11JAN90 TO 11JAN92”. While the Board does not make changes to the DD Form 214, we are notifying CNMPC that the original DD Form 214 should be corrected or reissued as appropriate.

Issues 2, 3 and 6. The Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization of a discharge solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Relief denied.

 Issue 4. The Board has no authority to upgrade a discharge for the sole purpose of enhancing an individual’s standard of living as requested in the issue. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. In the applicant’s case, the Board could discern no impropriety or inequity and therefore determined that relief is not warranted.
Issue 5. Under honorable conditions (general) is warranted when 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 award of nonjudicial punishment (NJP) for commission of a serious offense on one occasion and adverse counseling entries on other occasions. 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 7. 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. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities, and proof of not having a substance abuse problem, 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.


 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 971212, Article 3630605, 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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