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NAVY | DRB | 2001_Navy | ND01-01120
Original file (ND01-01120.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND01-01120

Applicant’s Request
The application for discharge review, received 010824, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020328. 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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (Equity Issue) This former member 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:
Statement in Support of Claim
Employment Reference Letter
Character Reference Letter
Copy of DD Form 214
Analysis of Academic Progress Report from North Carolina Central University (4pgs)
American Legion Cover Letters (3)
Letters from North Carolina Department of Administration (2)
Character Reference Letter
Newspaper Article
Copy of Certificate of Completion (Computer Graphics)
Copy of Real Estate Privilege License
Copy of Certificate of Registration (American Society of Composer, Authors and Publishers)
Copy of Financial Aid Statement
Memorandum of Understanding between North Carolina Central University Department of Art and J_____ W____ (2pgs)



PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     950317 - 950529  COG

 Period of Service Under Review :
Date of Enlistment: 950530               Date of Discharge: 961212

 Length of Service (years, months, days):

         Active: 01 06 13
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

Education Level: 12                        AFQT: 36

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.50 (2)    Behavior: 1.50 (2)                OTA: 2 .00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, BATTLE"E"RIBBON

Days of Unauthorized Absence: 42

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

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

 Chronological Listing of Significant Service Events :

950822:  NJP for violation of UCMJ, Article 86: (2 Specs), UA from appointed place of duty, violation of UCMJ Article 92: Failure to obey a lawful order/regulation.
         Award: Forfeiture of $239.00 pay per month for 1 month, restriction and extra duty for 07 days. No indication of appeal in the record.

960610:  Retention Warning: Advised of deficiency (Unauthorized absence, in violation of the UCMJ, Article 86), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960813:  NJP for violation of UCMJ, Article 86: Unauthorized absence from on or about 960716 to on or about 960805, violation of UCMJ Article 87: Missing movement on or about 960716.
         Award: Confined on 3 days Bread & Water. No indication of appeal in the record.

960910:  NJP for violation of UCMJ, Article 86: (2 Specs), Spec 1: Unauthorized absence from 960906 to 960909 [4days/S], Spec 2: Unauthorized absence from 960716 to 960805 [20days/S].
         Award: Forfeiture of $437.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
         
961101:  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 pattern of misconduct.
961101:          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.

961106:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86: UA from 960920 to 961008 [18days/S]; Charge II: violation of the UCMJ, Article 87: Missing movement; Charge III: violation of the UCMJ, Article 134: Breaking restriction.
         Finding: to Charge I, II, and III, and the specifications there under, guilty.
         Sentence: Forfeiture of $583.00 pay per month for 1 month, and confinement for 30 days.
         CA action 961106: Sentence approved and ordered executed.
961211:  Commander, Amphibious Group TWO authorized 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 961212 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 states: “(Equity Issue) This former member 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.” 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 his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. The applicant did not provide any of these documents. 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.

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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