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NAVY | DRB | 2001_Navy | ND01-00963
Original file (ND01-00963.rtf) Auto-classification: Denied


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

ex-CTOSR, USN
Docket No. ND01-00963

Applicant’s Request
The application for discharge review, received 010717, 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 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (Equity Issue) This former member avers that it is unjust for him to not be eligible for MGIB benefits due to the character of his discharge. For this reason, he opines that upgrade to full honorable is warranted.

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 this application.

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

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     921024 - 930921  COG

 Period of Service Under Review :
Date of Enlistment: 930922               Date of Discharge: 950818

 Length of Service (years, months, days):

         Active: 01 10 27
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 62

 Highest Rate: CTOSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 1.90 (2)                OTA: 2.50

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, NMCOSR

Days of Unauthorized Absence: None

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

GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

930923:  You are being retained in the Naval service, despite your fraudulent induction as evidenced by your failure to disclose required basic enlistment eligibility information. This decision is based on the information you provided the Recruit Quality Assurance Interviewer and if it is found that additional information has not been disclosed, this waiver is void and you could be subject to other judicial or administrative proceeding, ie., Fighting, Atlanta GA. Charges dropped.

940526:  NJP for violation of UCMJ, Article 121: Larceny, on 940422, within the AAFES Main Post Exchange, unlawfully removing AAFES property and was detained by AAFES Security Employee upon exiting the exchange and released to 142 ND MP CO Personnel.
         Award: Forfeiture of $416.00 pay per month for 2 months, restriction for 45 days, extra duty for 30 days, reduction to E-1. No indication of appeal in the record.

950314:  NJP for violation of UCMJ, Article 128: Assault, violation of UCMJ Article 134: Drunk and disorderly conduct.
         Award: Forfeiture of $427.00 per month for 1 month (suspended for 6 months), restriction to barracks for 60 days. No indication of appeal in the record.

950328:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty, to wit: restricted man's muster, violation of UCMJ Article 134: Break restriction on or about 0015, 950328.
         Award: Vacate forfeiture of $420.00 pay per month for 1 month suspended on 950314 CO's NJP. No indication of appeal in the record.

950329:  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 NJP on 940526 for violation of Article 121, UCMJ (Larceny) and NJP of 950314 for violation of Article 128, UCMJ (Two Assaults Consummated by Battery).
950331:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

950505:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 134.
         Specification: Breaking restriction
         Sentence: 4 day Hard Labor without confinement.
         CA action 950501: Sentence approved and ordered executed [Extracted from Commanders Letter dated 950616].
950606:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense as evidenced by NJP of 940526 in violation of Article 121 of the UCMJ, Larceny, also, based upon a preponderance of the evidence and by unanimous vote, found that the applicant has not committed misconduct due to commission of a serious offense as evidenced by NJP of 950314 in violation of the UCMJ, Two Assaults Consummated by Battery. By a unanimous vote, recommended applicant be retained in the Navy.

950613:  Commander, U.S. Naval Force Korea recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

950803:  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 950818 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 Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization 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. A characterization of service 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. T he applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on three occasions, a summary court-martial on one occasion, and an adverse counseling entry. 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 2. 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. The applicant 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 9, effective
22 Jul 94 until 02 Oct 96, 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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