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NAVY | DRB | 2002_Navy | ND02-00108
Original file (ND02-00108.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND02-00108

Applicant’s Request
The application for discharge review, received 011019, requested that the characterization of service on the discharge be changed to Entry Level Separation/Uncharacterized. The applicant requested a documentary record discharge review. The applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020620. 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)/SECRETARIAL AUTHORITY, authority: NAVMILPERSMAN, Article 3630900.

The NDRB did note an administrative error on the original DD Form 214. Block 4.a, Grade, Rate or Rank, should read: "AR" vice "AA" and Block 4.b, Pay Grade, should read: "E1" vice "E2". The original DD Form 214 should be corrected or reissued as appropriate.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. After being notified of charges, I denied them but I was under the impression my quilt was already decided. To avoid what I was told at the time could be possible brig time, finally exhausted and disappointed, I agreed to the charges it seemed the only logical thing to do. All statements made towards my family or myself are false. My family is extremely patriotic. Each generation gladly wearing our nations uniforms proudly.

2. Since my discharge I have worked in several diversified areas of employment. One being at the B_ L_ High School as a teacher of carpentry. Since my discharge, I have tried and failed to right this injustice of my name. Why would I do what my charges state and at the same time be in the process of applying to the for mentioned?

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Military Academy Application Form (Office of Senator M_ M_) dtd 13 Jun 95
Letter from Senator M_ M_ to applicant dtd May 26, 1995
Applicant's Enlisted Performance Evaluation for 95JAN28
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 941027               Date of Discharge: 951121

 Length of Service (years, months, days):

         Active: 01 00 25
         Inactive: None

 Age at Entry: 1 7 (parental consent)               Years Contracted: 4

Education Level: 12                                 AFQT: 51

 Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.8 (1)     Behavior: 3.6 (1)                 OTA: 3.6

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/SECRETARIAL AUTHORITY, authority: NAVMILPERSMAN, Article 3630900.

 Chronological Listing of Significant Service Events :

95xxxx:  Applicant's undated letter/statement concerning inability to work with blacks and Filipinos.

950621:  Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of best interest of the service, as evidenced by your statements that you cannot work around blacks and Filipinos, that you have always felt this way, and that you will be unable to adjust to working with blacks and Filipinos in the future.
950621:  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.
950627:  Applicant's repeated typed statement as witnessed by MACM(SW) S. B. M_, USN
950705:  Commanding officer recommended discharge with a general (under honorable conditions) by reason of best interest of the service. Commanding officer’s comments (verbatim): "Airman Recruit (Applicant) is recommended for separation due to his stated inability to work with African-Americans and Filipinos. When asked if the statements contained in his letter accurately reflect how he feels toward African-Americans and Filipinos, he responded that the letter did in fact reflect how he feels, that he was raised to feel that way, and that he felt that way prior to enlisting in the military. These expressed feelings by Airman Recruit (Applicant) indicate that he is not willing to and cannot treat his shipmates in an equal manner due to his choosing to discriminate based on race and that he is unwilling to support the Navy's Equal Opportunity program. His separation is believed to be in the best interest of the service."

950927:  CHNAVPERS recommended to the Secretary of the Navy that applicant be discharged in the Best Interest of the Service (BIOTS) with a general (under honorable conditions) due to inability to work with African-Americans and Filipinos.

951018:  Assistant Secretary of the Navy (ASN M&RA), (approved applicant's discharge, as recommended.

951023:  As approved by SECNAV, BUPERS directed applicant's discharge with a general (under honorable conditions) in the best interest of the service

990324:  Board for Correction of Naval Records disapproved applicant's request to upgrade the reenlistment code.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 951121 with a general (under honorable conditions) by reason of Secretary Authority due to Best Interest Of The Service (BIOTS) (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 NDRB, under its responsibility to examine the propriety and equity of an applicant’s discharge, will change the reason for discharge if such a change is warranted. The applicant’s summary of service clearly documents that his total length of service was from 941027 to 951121, a period of 1 year and 25 days. The applicant was notified of his command’s intent to recommend he be discharged with a general (under honorable conditions by reason of the best interest of the service) on 950621. Therefore, a change of discharge to an entry-level separation does not apply. The applicant’s time in service, and the processing time of his separation were clearly outside of 180-day window specified for an entry-level separation. The applicant’s request for an uncharacterized discharge has no merit since he served greater than 180 consecutive days on active duty. Additionally, there is no evidence that the applicant’s enlistment was judicially or administratively determined to be void. The applicant’s written and oral statements, made during his enlistment, expressing his inability to work with African-Americans and Filipinos earned the applicant a general (under honorable conditions) discharge. The applicant’s actions expressed his unwillingness to support the Navy’s Equal Opportunity Program. Relief denied.

Issue 2: The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. The applicant states: “I have tried and failed to right this injustice of my name”. His request to the BCNR to upgrade his reenlistment code was denied 990324. 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, a positive 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. Relief denied.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 22 Jul 94 until 2 Oct 96), Article 3630900, SEPARATION IN THE BEST INTEREST OF THE SERVICE.
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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