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NAVY | DRB | 2002_Navy | ND02-00271
Original file (ND02-00271.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND02-00271

Applicant’s Request
The application for discharge review, received 020117, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by the American Legion.

 Decision

A personal appearance discharge review was conducted in Washington, D.C. on 021031. 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. (Propriety Issue) This former member avers that he never received his due process rights as the signature on his discharge package is not his.
2. (Equity Issue) This former member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character Reference dated February 12, 2002
Character Reference from M_ D_ undated
Character Reference from R_ A_ undated
Character Reference dated October 16, 2002
Character Reference G_ B_ undated
Notice of an Administrative Board Proposed Action dated April 11, 1988 (2 pages)
Statement of Awareness and Request for, or Waiver of, Privileges dated April 11, 1988 (2 pages)
Recommendation for Separation by Reason of Misconduct dated April 25, 1988 (2 pages)
Applicant’s letter undated (3 pages)
Character Reference undated from G_ B_
Letter from Applicant to Senator F_ T_ dated August 3, 2001
Letter from United States Senate Constituent Services dated September 9, 2001
Applicant's DD Form 214
Letter from Navy Personnel Command Congressional Liaison Office dated September 6, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):

          Inactive: USNR (DEP)     870908 - 870923  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 870924               Date of Discharge: 880610

 Length of Service (years, months, days):

         Active: 00 08 17
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 11                        AFQT: 50

 Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (1)    Behavior: 2.80 (1)                OTA: 2.80

Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

880201:  NJP for violation of UCMJ, Article 86 (4 specs): (1) Unauthorized absence from appointed place of duty on 6 Jan 88, (2) Unauthorized absence from appointed place of duty on 15 Jan 88, (3) Unauthorized absence from appointed place of duty on 18 Jan 88, (4) Unauthorized absence from appointed place of duty on 24 Jan 88, violation of UCMJ, Article 107: False official statement on 6 Jan 88.
         Award: Forfeiture of $156 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
880201:  Retention Warning: Advised of deficiency (Failure to go to his appointed place of duty on 0600, 6 Jan 88 and made a false official statement, to wit: "I have been to medical.”), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880404:  NJP for violation of UCMJ, Article 121: Larceny of two cassette tapes, valued at $12.50 from the Navy Exchange on 29 Feb 88.
         Award: Forfeiture of $156 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
880411:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
880411:  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.
880425:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments (verbatim): [Airman Recruit B_ (Applicant) has been counseled via a page 13 warning in his service record. He has been an unauthorized absentee from appointed place of duty on four separate occasions, made a false official statement, and was caught stealing from the Navy Exchange. In my opinion he has no potential for future active honorable naval service; therefore, I recommend separation from the naval service with a Discharge Under Other Than Honorable Conditions by reason of misconduct.]

880528:  CNMPC 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 880610 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).

Issue1: The Board does not agree with the Applicant’s allegation that he was not given due process at time of discharge. The Board presumes regularity in the conduct of government affairs unless there is evidence to the contrary. No additional evidence was presented to the Board to support the Applicant’s claim that his signature was forged on two separate official government documents. It was during the Board hearing that this claim was first presented. Relief denied.

Issue 2: 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. After a complete review of the entire record, including the documentation submitted by the Applicant, the board determined that his discharge was appropriate and that his evidence of post-service conduct does not mitigate the conduct for which he was discharged. Relief denied.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until
10 Jan 89, Article 3630600, SEPARATION OF ENLISTED MEMBERS 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 " afls14.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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