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NAVY | DRB | 2002_Navy | ND02-00331
Original file (ND02-00331.rtf) Auto-classification: Denied


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

ex-FA USN
Docket No. ND02-00331

Applicant’s Request
The application for discharge review, received 020129, 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 020912. 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. I would like to have my discharge and RE-code upgraded so I may re-enlist.

 Documentation
Only the service and medical records were reviewed, as the Applicant did not provide additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     891212 - 900104  COG

 Period of Service Under Review :
Date of Enlistment: 900105               Date of Discharge: 920909

 Length of Service (years, months, days):

         Active: 02 08 05 (Doesn't exclude lost time.)
         Inactive: None

 Age at Entry: 17 (Parental consent)

 Years Contracted: 4

 Education Level: 10                        AFQT: 53

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.4 (2)     Behavior: 3.5 (2)                 OTA : 3.6

 Military Decorations: None

 Unit/Campaign/Service Awards: NUC, KLM, SWASM (W/2 Bronze Stars), SSDR, NDSM

 Days of Unauthorized Absence: 43

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 :

901108:  NJP for violation of UCMJ, Article 92: disobeying a lawful general regulation by possessing alcohol on board USS SARATOGA (CV 60).
         Award: Forfeiture of $200 per month for 2 months (suspended for 6 months), restriction and extra duty for 15 days. No indication of appeal in the record.
910426:  Unauthorized absence from 0730, 26APR91 intentions unknown.

910429:  Surrendered on board USS SARATOGA (CV 60) AT 0730 29APR91.

 910627:  NJP for violation of UCMJ, Article 86: unauthorized absence from USS SARATOGA from 91APR26 to 91APR29.
         Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 14 days. No indication of appeal in the record.
910627:  Retention Warning: Advised of deficiency (unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920427:  Unauthorized absence from USS SARATOGA since 0730, 92APR27, intentions unknown.

920511:  Surrendered to military authority at NAVSTA Mayport, FL, at 1330, 92MAY11. Returned to military control for further transfer to NAS Jacksonville, FL for disciplinary action.

920605:  Unauthorized absence from NAS Jacksonville, FL since 0630, 92JUN05, intentions unknown.

920701:  Apprehended by civilian authorities at 2300, 92JUL01 at Jacksonville, FL. Returned to military control at 2300, 92JUL01 at NAS Jacksonville, FL for disciplinary action.

920702:  Pretrial confinement.

920803:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86, 2 Specifications.
         Specification 1: Unauthorized absence from 27APR-11MAY92.
         Specification 2: Unauthorized absence from 05JUN-01JUL92.
         Findings: to Charge I and specifications 1 and 2 thereunder, guilty.
         Sentence: Confinement for 45 days, forfeiture of $523 per month for 1 months, reduction to E-2.
         CA 921010: Sentence approved and ordered executed. Naval Brig Jacksonville, FL designated as place of confinement.

920807:  From confinement: to full duty.
920806:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by Special Court Martial on 3 Aug 1992 for violation of UCMJ Article 86: (Spec 1) unauthorized absence from 27 April 1992 until 11 May 1992, (Spec 2) unauthorized absence from 5 Jun 1992 until 1 July 1992; and misconduct due to a pattern of misconduct as evidenced by CO's NJP on 8 November 1990; CO's NJP on 27 November 1991, Special Court-Martial on 03 August 1992.
920808:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

920810:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct.

920821:  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 920909 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).

The Applicant presented only one issue. The Applicant is requesting to have his reenlistment code changed so that he can reenlist. The NDRB has no authority to change reenlistment codes or make recommendations to permit reentry or reinstatement into the naval service or any other 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 a waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is therefore denied.

The following is provided for the benefit of the Applicant. 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. E vidence of continuing educational pursuits, an 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 on post-service conduct. In addition, the Applicant should provide credible evidence of drug and alcohol free living. The Applicant failed to provide any of these documents. Relief denied.
The Applicant is reminded that the period of eligibility for a personal appearance hearing is 15 years from the date of discharge. The application package must be submitted to the NDRB prior to the expiration of the 15 year period. 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), effective 15 Aug 91 until
04 Mar 93, 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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