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NAVY | DRB | 2002_Navy | ND02-00357
Original file (ND02-00357.rtf) Auto-classification: Denied


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

ex-ADAR, USN
Docket No. ND02-00357

Applicant’s Request
The application for discharge review, received 020204, requested that the characterization of service on the discharge be changed to general/under honorable conditions and the reason for the discharge be changed to separation in the best interest of service. The Applicant requested a personal appearance hearing discharge review before a traveling panel closest to Lemoore, CA. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, DC Area. The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021217. 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, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I was on active duty, I was a hard working sailor. Yes I've made mistakes while on active duty. I've only been to captains mass one time. I went to mass because I was one day late from leave, the reason why I was late is because I didn't pay attention to my leave chit. So instead of coming back on the day I was supposed to come back I came bask one day late. So my captain did not believe me and also charged me with false "official statement". I respectfully asked that this be looked into. Serving my country is important to me. While I was on active duty I worked hard. I care about the American Flag and most of all the freedom of my country. I respectfully request that the RE:4 get changed to a RE:3 and that commission of a serious offense get taken off my DD214, and be changed to something of a minor charge. I want to serve my country. In harms way please help me. Here I've attached some more statements that others wrote. In one issue I was confined to the brig illegally. I was also sent to CCU for being one day late from leave. Once I talked to Navy Legal I found out that my command did something illegally. I filed a complaint and a day after I filed my complaint my command decided they wanted to separate me. I fill that I got separated under reprisal and this should be looked into. To whom this may concern please help me.

To the Department of Naval Records.
While I was on active duty I did my best to be a good sailor at times I love my job someday we had good days and someday we had bad days I sometimes made mistakes like once in a while I forgot to shave or showed up to work late but that was it yes im sorry for the mistakes I've made. My military career is very important to me. Their were people in my command that did drugs and got general discharges and RE3 RE3 codes. In one case were a sailor got drunk on duty and got one day in restriction. But to be honest I don't have time to focus on other sailors mistakes but I please ask of you to read all of my packet to that my lawyer put together. I've made a mistake but my command V.F.A. 146 made some mistakes and they even admitted to it also in the letter that I wrote Congressman D_ office. I'm in the progress of writing the Chef of Naval Operations. If the board can't help me. All I won’t is the board to help me get the Wright discharge that I deserve. If my discharge get upgraded I will enlist in the U.S. Army the Army said that they would take me because my records looked like they were done wrong all I need is a discharge upgrade and the reason for discharge changed to something of a lesser offense. But I won’t include in this letter that my command decided to separate me after I filed my complaint against them and this is the article 138 complaint that you are holding in your hand. I would like to asked you to find out what CCU at Camp Penalton a US marine base what are the standards and it also states that no one shall be in they program if on light limited duty, and it also states that command must come and visit me to see how I was doing but no one came. I passed out on a ten mile run because I was never use to running with a 100 pound sand bag on my back and also my knee had swollen so I had no choice but to go back to my command then I had found out that they had done something illegally see article 138 complaint. I hope that you can help me thank you for taking the time to review my complaint all I won’t is to be treated fair. When I went to boot camp they taught me honor and courage and commitment. My command does not know that someone in my command made a copied of my medical records they destroyed them they wanted that I got out of CCU on misconduct here I got copies of those records for you. Please help me.

 Documentation
In addition to the service record (without discharge package) and medical record, only a partial discharge package was received from the Applicant, the following documentation, submitted by the Applicant, was also considered:
Letter from Congressman D_
Copy Commanding Officer's Discharge Authority
Copy of DD Form 214
Letter of Response from Commander, Carrier Air Wing NINE, Captain R_ C. T_ (3 pages)
Applicant's Complaint of Wrong under Article 138, Commander J_ H_, Commanding Officer, VFA-146 (6 pages)
Copy of NJP dated 010126
Copy of Direct Order
Voluntary statement from AS2 J_ L_
Written Statement from V_ W_ and ADAA M_ D. M_
Copy of Confinement Order
Copy of Prisoner's Release Order
Medical Documents (4 pages)
Copy of DD Form 214
Copy of Notification of Administrative Board Procedures and Statement of Awareness
Copy of Appendix I Complaint of Wrongs

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990125 - 990526  COG
         Active: USN               None

 Period of Service Under Review :
Date of Enlistment: 990527               Date of Discharge: 010316

 Length of Service (years, months, days):

         Active: 01 09 20
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 32

 Highest Rate: ADAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 1

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

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

 Chronological Listing of Significant Service Events :

010126:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700, on 001228 and returned 0630, 001229, violation of UCMJ Article 86: Unauthorized absence from 0730 to 1200 010124, violation of UCMJ Article 107: False official statement.
         Award: Forfeiture of $550.00 for 2 months, correctional custody for 30 days, reduction to next inferior pay grade. No indication of appeal in the record.
010207   NJP for violation of UCMJ, Article 92: Failure to obey other lawful written order.
         Award: Restricted to NAS Lemoore, CA for 45 days, extra duties for 45 days, forfeiture of $521.40 for 2 months and reduction to next inferior pay grade.

010212:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense. [Extracted from case file].
010212:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board. The Applicant later waived his right to an Administrative Discharge Board. [Extracted from case file].

010314:  Commanding Officer authorized discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. [Extracted from case file].

 PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 010316 under other than 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 NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. The Applicant was awarded non-judicial punishment (NJP) on two occasions. The proceedings of the first NJP are undisputed and the findings sufficient to support the Applicant’s processing for separation, reason for discharge and characterization of service. The NDRB found the Applicant's service record devoid of any mitigating or extenuating factors that would warrant an upgrade of the Applicant's discharge to general under honorable conditions. The summary of service clearly documents the Applicant’s award of non-judicial punishment for making a false official statement, which constitutes the commission of a serious offense, and is an offense triable by court-martial. However, separation processing initiated due to the co mmission of a serious offense does not require adjudication by either non-judicial or judicial proceedings. T o change the Narrative Reason for Separation would be inappropriate. Relief denied.

Issue 2: Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch 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 waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is therefore denied.

The following information is provided for the benefit of the Applicant. 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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for an upgrade based on post-service conduct.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, 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 31, dated 20 Feb 01, effective 25 Jan 01 until Present, 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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