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NAVY | DRB | 2001_Navy | ND01-01021
Original file (ND01-01021.rtf) Auto-classification: Denied


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

ex-SHSA, USN
Docket No. ND01-01021

Applicant’s Request
The application for discharge review, received 010802, 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 020221. 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. My entry date was 95 May 23 and my discharge date was 99 May 17. Since my end of enlistment was only 6 days away I feel it was unfair to receive this type of discharge.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Statement from Navy Exchange Service Command, Virginia Beach, VA

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     950331 - 950522  COG

 Period of Service Under Review :
Date of Enlistment: 950523               Date of Discharge: 990517

 Length of Service (years, months, days):

         Active: 03 11 25
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 10                        AFQT: 46

 Highest Rate: SHSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, NDSM, BEA (2), AFEM, NUC, SSDR

 Days of Unauthorized Absence: 47

 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 :

981230:  NJP for violation of UCMJ, Article 86: Absent from unit 2000, 5Dec98 to 0700, 7Dec98 (1 day/surrendered).
         Award: Restriction and extra duty for 7 days. No indication of appeal in the record.
990122:  NJP for violation of UCMJ, Article 107: False official statement to Cdr on 1500, 30Dec98, to wit: that he spent the day at the hospital.
         Award: Restriction and extra duty for 14 days. No indication of appeal in the record.
990226:  Applicant to unauthorized absence 0700, 26Feb99.

990304:  Applicant missed movement.

 990414:  Applicant from unauthorized absence 1535, 14Apr99 (46 days/surrendered).
990415:  NJP for violation of UCMJ, Article 86: Absence from unit from 0700, 26Feb99 to 1535, 14Apr99 (46 days/surrendered), violation of UCMJ, Article 87 (5 specs): (1) Missing movement on 3Mar99, (2) Missing movement on 8Mar99, (3) Missing movement on 22Mar99, (4) Missing movement on 3Apr99, (5) Missing movement on xx Apr99, violation of UCMJ, Article 92: Failure to obey a lawful order.
         Award: Restriction and extra duty for 45 days, reduction to SHSA. No indication of appeal in the record.
990517:  DD Form 214:Discharged the applicant's under other than honorable conditions by reason of misconduct due to the commission of a serious offense, authority: NAVMILPERSMAN, Article 1910-142.

Discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990517 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. The applicant’s length of service is only one of several considerations in determining the characterization of service. A characterization of service of 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. Missing ship’s movement constituted the commission of a serious offense. 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.

 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 is evident 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 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.



Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, 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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