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NAVY | DRB | 2002_Navy | ND02-00282
Original file (ND02-00282.rtf) Auto-classification: Denied


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

ex-SN, USNR
Docket No. ND02-00282

Applicant’s Request
The application for discharge review, received 020122, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020815. 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)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I am currently applying to become a police officer and any help with upgrading my discharge is greatly appreciated. I have never been arrested, and I have been married going on 5 years and have a 3 year old daughter.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
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: 940329               Date of Discharge: 951026

 Length of Service (years, months, days):

         Active: 01 04 00 (Doesn't exclude lost time.)
         Inactive: 00 02 29

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 64

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.5 (2)     Behavior: 3.4 (2)                 OTA: 3.56

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 26

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

940627:  Commenced 36 months active duty under the Seaman Apprenticeship Training Program.
950725:  NJP for violation of UCMJ, Article 91: insubordinate conduct toward warrant officer, noncommissioned officer or petty officer.
         Award: Restriction and extra duty for 30 days. No indication of appeal in the record.
950726:  Unauthorized absence from USS CONSTITUTION.
950728:  Retention Warning: Advised of deficiency (violation of UCMJ, Article 91, Section 3 - insubordinate conduct toward warrant officer, noncommissioned officer or petty officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950821:  Surrendered on-board (26 days/S).

950830:  NJP for violation of UCMJ, Article 86: absence from unit, organization, or place of duty.
         Award: Restriction and extra duty for 45 days. No indication of appeal in the record.
950907:  Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense. Applicant advised that the characterization of service may be Under Other Than Honorable Conditions.

950907:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
950918:  Commanding Officer recommended discharge with a General (Under Honorable Conditions) characterization of service by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments (verbatim): "SN (Applicant) has been on active duty for approximately eleven months. SN (Applicant) attempted tasks that challenged his physical and mental capabilities. The enthusiasm that he showed towards his job and the crew of CONSTITUTION made him a pleasure to work with, but he did not display the maturity required to follow the laws and regulations of the Naval service. It is my belief that he is not suitable for Naval service nor will he be in the future. His retention in the Navy is not recommended."

951012:  BUPERS directed the applicant's discharge with a General (Under Honorable Conditions) characterization of service 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 951026 with a General (under honorable conditions) for misconduct due to the 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 has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. In the applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s discharge was proper and equitable. The applicant’s discharge characterization accurately reflects his service to his country. 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. Relief not warranted.

The applicant 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. Representation at a personal appearance hearing is 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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