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NAVY | DRB | 2002_Navy | ND02-00350
Original file (ND02-00350.rtf) Auto-classification: Denied


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


ex-AOAN, USN
Docket No. ND02-00350

Applicant’s Request
The application for discharge review, received 020204, 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 listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021029. 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/Separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as submitted

 1. I request my discharge be upgraded as indicated to reflect time spent in service for a total of 13 yrs. I committed no offense as alleged I only wanted to be with my family whom had suffered and relocated causing me to not fully understand discharge awarded. This discharge was given out of misinformation and unfair to my career. I have served my country proudly and respectfully with respect to enclosed documents.
Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION." None were found.
2. Dear Chairperson:
After a review of the Former Service Members (FSM) DD Form 293 Application for the Naval Discharge Review Board of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by the Applicant, in their request that they be given the opportunity to upgrade their General (Under Other Than Honorable Conditions) to a Honorable Discharge.
The (FSM) entered the Navy Military Service on June 20, 1986 until May 10, 1991 a period of (5) years (11) months. During the first periods of his enlistment the (FSM) served without any Non-Judicial Punishments and was considered an outstanding sailor with annual ratings of superior performance evaluations of 4.0 the highest score give to enlisted personnel. The Only negative actions are the subsequent charges he received in a very short time period he required several major other offenses that are related to being charged with Indecent assault upon a new recruit under his charge and a subsequent charge of drug use and abuse which was defected during a physical exam, which added to his other charges under the UCMJ Offenses.
 The (FSM) desires now to have his (Under Other Than Honorable) Discharge up-graded to an Honorable Discharge from the Naval Authorities.

The (FSM) past behaviors he exhibited that lead to his discharge he now feels can be personally attributed to immaturely and inability to handle the stressful day to day military life is what lead him to act out in inappropriate ways on active duty.

The (FSM) now respectfully requests an equitable standard be applied as well as equity in treatment in seeking the boards' approval to afford him the opportunity to receive and an up-grade of his (Under Other Than Honorable) Discharge to an Honorable Discharge.

The (FSM) sincerely hopes that by respectfully requesting and being granted an Up-Grade of his Discharge and the citing the reasons for his past violations of military Naval Service Rules and policies and his subsequent dismissal for US Naval Services.

The (FSM) feels his military accomplishments of service are a matter of Supreme Honor and Respect he will cherish throughout his lifetime. The (FSM) also States he had always tried to achieve Honor and Respect during his almost entire term of enlistment of military duty in the Navy Service, but just failed on this short period of enlistment.

We respectfully request that the (FSM) be given complete and duly consideration by the board. We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now wishes to seek to correct the mistakes and the negative behavior he exhibited and prevented him from fulfilling his military duty in the United States Naval Services.

We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214
 North Carolina criminal record check dated August 31, 2001
 Twenty-two pages from Applicant's service
Character reference from Pastor, Lakeview Missionary Baptist Church dated February 27, 2000
 Certificate of recognition dated December 17, 2000
 Certificate of appreciation dated January 9, 2000
Certificate of attendance dated June 1, 2000
 Certificate of attendance dated February 25, 1999
 Group picture
 Notes from the Disabled American Veterans representative
 Certificate of attendance dated Februrary 26, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        790725 - 850619  HON
          Inactive: USNR (DEP)     790305 - 790724  COG

 Period of Service Under Review :
Date of Enlistment: 850620               Date of Discharge: 910510

 Length of Service (years, months, days):
         Active: 05 10 21
          Inactive: None
Age at Entry: 25                          Years Contracted: 4 (28 months extension)
Education Level: 12                        AFQT: 25

 Highest Rate: AO1
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.55 (8)    Behavior: 3.57 (8)                OTA: 3.70
Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, OSDR, GCM (2), NDSM

 Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.
Chronological Listing of Significant Service Events :

900508:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation by having financial dealings with recruits, violation of UCMJ, Article 121: Steal $483.00 on 4Dec89, the property of 15 drill team members, violation of UCMJ, Article 134: Soliciting and collecting unauthorized funds and by acting as an unauthorized agent for his drill team members on 17Oct89.
         Award: Forfeiture of $500 per month for 1 month, oral reprimand. Forfeiture suspended for 3 months. No indication of appeal in the record.
901109:  U.S. Naval Investigative Service Report.

 910325:  NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 910319, tested positive for THC.
910329:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 92: Failing to obey a lawful general regulation on 9Nov90, Article 134 (2 specs): Committing an indecent assault on 9Nov90, and Article 112a: Wrongfully use marijuana between 12Feb91 and 14Mar91.
910424:  Medical Examination: Applicant evaluated by medical officer and found that he is capable of understanding the charges preferred against him and that an examination by a psychiatrist is not warranted.

910424:  Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He consulted with counsel and was fully advised of the implications of his request. The Applicant stated he understood the elements of the offense(s) with which he was charged, requested reduction to E-3, and admitted he was guilty of all the charges preferred against him. Specifically, he admitted to violating UCMJ, Article 92: Failing to obey a lawful general regulation on 9Nov90, Article 134 (2 specs): committing an indecent assault on 9Nov90 and Article 112a: Wrongfully use marijuana between 12Feb91 and 14Mar91. The Applicant stated he was completely satisfied with the counsel he had received. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.

910506:  The Commanding Officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 910510 under other than honorable conditions in lieu of a trial by court-martial (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).
Issues 1 and 2. The Board found nothing in the service record to support the Applicant’s allegations that he was innocent of the charges that he admitted guilt to on 910424 when he requested separation in lieu of a court-martial. While he may feel that his immaturity, concern for his family, and inability to handle stress were factors that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The Board found that the Applicant’s prior honorable service is not sufficient to mitigate the Applicant’s misconduct. The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. 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. The Board determined that the Applicant’s evidence of post-service conduct did not mitigate the conduct for which he was discharged. 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 15560A), Change 7, effective
25 May 89 until 14 Aug 91, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURTMARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 112a, illegal drug use, Article 121, larceny, or Article 134, indecent assault upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

C. 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.

D. 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.

E. 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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