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NAVY | DRB | 2002_Navy | ND02-00252
Original file (ND02-00252.rtf) Auto-classification: Denied


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

ex-OSSR, USN
Docket No. ND02-00252

Applicant’s Request
The application for discharge review, received 020114, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 020731. 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 inequitable because it was based on one isolated incident within 28 months of service with no adverse action.

2. I would like to consider return into the U.S. Armed Forces reserved duty (U.S. Coast Guard).

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Applicant's Resume

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     941022 - 950305  COG

 Period of Service Under Review :
Date of Enlistment: 950306               Date of Discharge: 960222

 Length of Service (years, months, days):

         Active: 00 11 17
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 13                        AFQT: 79

 Highest Rate: OSSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*        Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: 9

*No Marks Found in service record.

 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 :

951006:  Unauthorized absence from USS SPRUANCE.

951014:  Surrendered onboard (9 days).

 951016:  NJP for violation of UCMJ, Article 86: absence from unit, violation of UCMJ Article 87: missing movement.
         Award: Forfeiture of $427 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
951221:  NJP for violation of UCMJ, Article 112A: wrongful possession of controlled substance; violation of UCMJ Article 121: larceny of government property; violation of UCMJ Article 134: concealed weapon.
         Award: Forfeiture of $427 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
951227:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by wrongful possession of a controlled substance and misconduct due to the commission of serious offenses during enlistment.
951228:  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.
960103:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense. Commanding Officer’s comments (verbatim): "OSSR E_ (Applicant)'s performance during his time on board USS SPRUANCE has been unsatisfactory and detrimental to good order and discipline. Despite efforts from each level of his chain of command, he has failed to adapt to shipboard life. OSSR E_ (Applicant) has no potential for further naval service and has become a burden to this command. OSSR E_ (Applicant) is recommended to receive an Other Than Honorable Discharge from the naval service."

960131:  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 960222 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 asserts that his discharge was inequitable because it was based on one isolated incident within 28 months of service with no adverse action. The applicant will note that his active duty service of 11 months and 10 days is marred by the award of non-judicial punishment (NJP) on two occasions and that award of non-judicial punishment is an adverse action. It is the unanimous opinion of the Board that the applicant’s discharge characterization accurately reflects his service to his country. Relief denied.

Issue 2: Concerning reenlistment, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief denied.

Issue 3: The NDRB is authorized to consider outstanding post-service conduct, 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. However, there is no law or regulation that 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. In determining whether a case merits a change based upon post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the applicant is drug free, are examples of verifiable documentation. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. Relief denied.

The applicant is reminded he remains eligible for a personal appearance hearing provided an application is received within 15 years from the date of discharge . Representation at a personal hearing is not mandatory, but is strongly recommended.


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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