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NAVY | DRB | 2002_Navy | ND02-00083
Original file (ND02-00083.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND02-00083

Applicant’s Request
The application for discharge review, received 011010, 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 02 July 2002. 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, as submitted

 1. My discharge was based on many offenses, but they were mostly minor offenses. ASWAUTH.

2. My record of NJP's/Article 15's indicates only minor offenses. ASWAUTH.

3. My bad discharge was based on isolated acts of Indiscipline. ASWAUTH.

4. I was not properly counseled by my command. ASWAUTH.

5. Counseling requirements were not met or waived. ASWAUTH.

6. There were not enough incidents to warrant my Bad Discharge. ASWAUTH.

7. I was not properly counseled about the discharge. ASWAUTH.

8. I asked to withdraw the discharge but my request was not processed or considered. ASWAUTH.

9. I did not have a lawyer to advise me and that hurt my case. ASWAUTH.

10. My conduct and efficiency rating/behavior and proficiency marks were mostly pretty good. ASWAUTH.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant
Copies of DD Form 214 (2)
Completed DD Form 149
Copy of Evaluation Report & Counseling Record
Copy of Enlisted Performance Evaluation Report
Request for Reference (5)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     941228 - 941228  COG

 Period of Service Under Review :
Date of Enlistment: 941229               Date of Discharge: 960514

 Length of Service (years, months, days):

         Active: 01 04 16
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 10                        AFQT: 57

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)    Behavior: 2.00 (1)                OTA: 2.80
 Performance: 3.00 (1)    Behavior: 2.00 (1)                OTA: 3.00 (5.0 Evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, HSM

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 :

960116:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of the assault you committed as evidenced by your NJP on 960215, for violation of the UCMJ, Article 128, assault.
960215:  NJP for violation of UCMJ, Article 128: Assault.
         Award: Oral reprimand, forfeiture of $100.00 per month for 2 months, extra duty for 45 days. No indication of appeal in the record.
960307:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by CO's NJP on 960215.

960422:  Applicant advised of rights and having elected to consult with counsel certified under UCMJ Article 27B, elected the right to obtain copies of all documents used to support the basis for the separation and apparently elected to waive all other rights.

960429:  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 960514 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).

Issues 1 though 3 and 6: The Board found the Applicant's contentions without merit. The term "serious offense" should not be confused with what is considered serious in the civilian world. The Uniform Code of Military Justice (UCMJ) categorizes a wide range of offenses as "serious": disrespectful language, failure to obey a lawful order or written regulation, drunken driving, forgery, missing ship's movement, unauthorized absence in excess of 30 days, making false official statements, and so forth, right up to the most egregious crimes of spying, aiding the enemy in time of war, mutiny, rape and murder. Although all of these offenses come under the broad UCMJ category of "serious offense", some are clearly more heinous than others. A person in the military must abide by the same standards as set forth in the UCMJ, regardless of what guidelines his civilian counterparts might utilize. An assault is a "serious offense" under the UCMJ. The commission of any single "serious offense" supports a discharge under other than honorable conditions. The Applicant's discharge was proper and equitable. Relief denied.

Issues 4 and 5: The Applicant contends he was not properly counseled by his command. When a member is separated for the commission of a serious offense counseling is not required. A single incident warrants separation under other than honorable conditions. Relief denied.

Issues 7 through 9: The Board presumes regularity in the conduct of governmental affairs. The Applicant did consult with a lawyer prior to his discharge. There is no evidence that the command abused its authority when it initiated separation proceedings. The Applicant was provided with and signed a letter of intent to administratively separate him under other than honorable conditions for commission of a serious offense. The Applicant was also provided with an acknowledgement of rights. He was made aware of his rights and elected to receive all of the documents serving as the basis for his discharge. He failed to elect the right to an administrative board. The Board rejects the Applicant's claim that his discharge was not proper. There is no evidence in the Applicant's record that he requested to have an administrative discharge board. Relief denied.


Issue 10: The Board disagrees with the Applicant's contention that his service was "mostly pretty good." When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. 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 his violation of the UCMJ, Article 128 (assault). The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects this violation and falls short of that required for an upgrade of his characterization of service. Relief is not warranted.

The following is provided for the benefit of the Applicant. 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. E vidence 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 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. A personal appearance is highly recommended. The Applicant can provide additional documentation to support any claims of an error or injustice that occurred during his processing. In addition, the Applicant can present any evidence of post-service accomplishments at the personal appearance hearing. 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 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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