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NAVY | DRB | 2002_Navy | ND02-00294
Original file (ND02-00294.rtf) Auto-classification: Denied


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

ex-AMSAR, USN
Docket No. ND02-00294

Applicant’s Request
The application for discharge review, received 020123, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The Applicant listed American Legion as the representative on the DD Form 293. In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021008. 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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. I contend that I never committed any serious offense resulting in my discharge for misconduct. I was found with two civilian driver's licenses, which was a childish thing to do since I only did it to change my date of birth. I do not feel this should have warranted the type of discharge (general) I was awarded. I feel my discharge should be upgraded to honorable and my veterans benefits reinstated.

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
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: USN               None
         Inactive: USNR (DEP)     981121 - 990206  COG

 Period of Service Under Review :
Date of Enlistment: 990207               Date of Discharge: 000824

 Length of Service (years, months, days):

         Active: 01 06 18
         Inactive: None

 Age at Entry: 27                          Years Contracted: 4 (12 month extension)

 Education Level: 12                        AFQT: 39

 Highest Rate: AMSAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: 0.00

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: None

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

GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

000404:  Civil Conviction: Arrested by Newport Beach Police for disorderly conduct and public intoxication.
 Sentence: Served 3 days in jail and was released for time served.
000430   Detained by Newport Beach Police, accused of public intoxication and outstanding warrant for vandalism. Returned to military control 000503.

000611   Arrested on base for DUI.
         [Legal Officer ltr dated 7 September 2000]

000614:  Medical evaluation:
          AXIS I: (303.90) Alcohol Dependence     
         AXIS II: Antisocial Personality Features, rule out disorder
         AXIS III: Alcohol withdrawal
         AXIS IV: problems with the social environment
         AXIS V: (admission): 11-20 Some danger of hurting self or other, and gross impairment in communication
         AXIS V: (current): 51-60 Moderate symptoms or difficulty in functioning
         AXIS V: (highest) 61-70 Some mild symptoms, or some mild difficulty in functioning.
        
000628:  NJP for violation of UCMJ, Article 83: Fraudulent enlistment, appointment, or separation, violation of UCMJ Article 86: Absence without leave, violation of UCMJ Article 89: Disrespect toward a Superior Commissioned Officer, violation of UCMJ Article 90: Assaulting or willfully disobeying Superior Commissioned Officer, violation of UCMJ Article 91: (2 Specifications), Insubordinate conduct towards a Petty Officer, violation of UCMJ Article 92: Failed to obey order or regulation, violation of UCMJ Article 95: (2 Specifications), Resistance, flight, breach of arrest, and escape, violation of UCMJ Article 108: Damage of Military property; violation of UCMJ Article 111: Drunk Driving; violation of UCMJ Article 117: Provoking speeches or gestures.
         Award: Forfeiture of $502.00 pay per month for 2 months (suspended for 6 months), restriction to NASNI for 60 days, reduction to E-1. No indication of appeal in the record.

000628:  Applicant notified of intended recommendation for discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense and defective enlistment and induction-fraudulent entry into the Naval Service.
000628:          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.

000804:  The suspended forfeiture of $502.00 pay per month for 2 months vacated due to continued misconduct.

000821:  Commanding Officer recommended discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments: (verbatim): [AR S_ (Applicant) is not compatible for Naval Service. After his arrest on 4 April the command received a police report indicating that Airman Recruit S_ (Applicant) had several aliases. NCIS was contacted and an investigation was commenced to determine Airman Recruit S_ (Applicant) background. Agents found a “rap” sheet on him that was four pages long, containing several aliases and drivers licenses with his picture. Offenses listed were several burglaries, DUI’s, drug-related charges and other misdemeanors. After a check of AR S_ (Applicant) service record, it was determined that he did not indicate any of his past offenses to his recruiter and hence warrants a separation for fraudulent enlistment. Incidentally, while the investigation for fraudulent enlistment was ongoing, AR S_ (Applicant) was arrested on base NASNI for DUI…Airman Recruit S_ (Applicant) is not suitable for military life and is therefore separated with a General discharge from the Naval Service.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 000824 with a characterization of general under 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: Upon review of the official record, the Board found more than sufficient evidence to support the Applicant’s discharge. The Summary of Service clearly describes the Applicant’s serious offense(s). Relief not warranted.

Issue 2: 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, t here 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 and certification of non-involvement with civil authorities are examples of verifiable documents that should have been provided to receive consideration for clemency, based upon post-service conduct. The Applicant failed to provide any post service documentation. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. 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 28, effective
30 Mar 00 until 29 Aug 00, Article 1910-142 [formerly 3630605]. SEPARATION 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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