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NAVY | DRB | 2001_Navy | ND01-01130
Original file (ND01-01130.rtf) Auto-classification: Denied


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

ex-DPSN, USN
Docket No. ND01-01130

Applicant’s Request
The application for discharge review, received 010830, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. The applicant requested a personal appearance hearing before the Board in the Washington National Capital Region. The applicant listed the American Legion as the representative on the DD Form 293. In the acknowledgement letter to the applicant, he was advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020517. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. (Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his overall service record is sufficient to warrant release under honorable conditions.

2. (Equity Issue) This former member further requests that the Board include provisions 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:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     880907 - 880927  COG

 Period of Service Under Review :
Date of Enlistment: 880928               Date of Discharge: 950519

 Length of Service (years, months, days):

         Active: 06 07 22
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4 (32 months extension)

 Education Level: 12                        AFQT: 46/37

 Highest Rate: DP3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (10)   Behavior: 3.34 (10)               OTA: 3.66

 Military Decorations: None

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

 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 3630600.

 Chronological Listing of Significant Service Events :

930304:  Retention Warning: Advised of deficiency (Unsatisfactory behavior: May92: Check to AAFES for $150 returned - NSF.
 Nov92: Check to AAFES for $150 returned - NSF.
Nov92: You were late returning from a weekend trip to New Orleans due to a lack of funds. A letter of caution issued.
Nov92: Your NCO Club account was delinquent in the amount of $347. A letter of caution issued.
Jan93: Checkcare delinquency in the amount of $641.
Feb93: Your NCO Club was delinquent in the amount of $147.
Apr93: Your were late for duty.
Apr93: You missed JDISS training.
May93: You missed duty.
Jun93: A check cashed at the Navy Exchange New Orleans was returned ad NSF. A memorandum for the record was made by MSGT Y_.
Aug93: You received another letter of caution for being late for an ALL Hands meeting.
Aug93:You received a letter of reprimand for skipping duty
Oct93: Your NCO Club account was delinquent in the amount of $602. A letter of caution was issued.
Oct93: You received a letter of caution for missing work due to "car problems"
Dec93: Check to AAFES for $150 returned - NSF.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940900:  Involvement with civilian authorities: In September 1994, applicant was involved in a minor traffic accident in the parking lot of the Enlisted Club. A check was run on his drivers license by MacDill AFB Police which revealed that the State of Florida had revoked the license in February 1994 after determining that a license previously issued by the Commonwealth of Virginia had been either suspended or revoked for failure to comply with terms of probation. Efforts by this command to gain further details have been unsuccessful.

941219:  NJP for violation of UCMJ, Article 92: Brought a loaded and unregistered .40 caliber Ruger handgun onboard MacDil AFB and subsequently abandoned the weapon in bushes adjacent to the base Burger King restaurant, where it was discovered and surrendered to Base Police, violation of UCMJ, Article 134: Wrongfully used his American Express Government credit card for personal expenses and cash advances, resulting in an account balance of approximately $2,900.00 in delinquent payments between May and November 1994.
         Award: Forfeiture of $545 per month for 2 months, restriction for 15 days, reduction to DPSN. Forfeiture suspended for 6 months. No indication of appeal in the record.
950222:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
950222:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
950320:  Charges served on applicant alleging violations of Articles 123A UCMJ in that a check written to the Base Exchange by applicant on 14Feb95 in the amount of $150.00 was returned for non-sufficient funds, and a second check in the amount of $30.00 written on 17Feb95 at the Base Exchange was returned for the same reason. It was in response to these charges that an Offer of Negotiation which originated with applicant and his attorney was presented and subsequently accepted by the Commanding Officer.
950323:  Offer of negotiation regarding administrative separation proceedings. Applicant agreed to waive the administrative discharge board scheduled for 30Mar95 if the command will agree to suspend action on the charges and specifications detailed above for a period of six months from this date.

950420:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and dishonorable failure to pay just debts.

950425:  BUPERS 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 950519 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 Board found the applicant’s overall service record is not sufficient to warrant release under honorable conditions. 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 the commission of serious offenses which could have been resulted in a court-martial, 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 would be inappropriate.
Relief denied.

Issue 2. 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 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 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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