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NAVY | DRB | 2002_Navy | ND02-00361
Original file (ND02-00361.rtf) Auto-classification: Denied


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

ex-ABFAA, USN
Docket No. ND02-00361

Applicant’s Request
The application for discharge review, received 020205, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance hearing discharge review. The Applicant did not list any representative on the DD Form 293. In the acknolwedgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentay review prior to any personal appearance hearing.

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, authority: NAVMILPERSMAN, Article 3630600. Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. I'm writing to mention issues which I believe should be a basis for upgrading my discharge. First at hand I served time at a county Jail as well sentenced to a three year probation term. This experience was very difficult because never had I been in trouble with the law before this incident. Serving time also kept me away from my infant son. I was also discharged from navy and forced to resign from a job I took great pride in. It has been almost six years since the accident and I believe I have paid my dept to society. I have not been able to attain a number of jobs due to my other than honorable discharge. It has been difficult to provide for my family, however I maintain high spirits. I continue to lead a productive life and with due regard for the Safety of others. I have made amends withe the A_ family. I hope you can carefully review my case and realize my sincerity in the matter.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Character reference dated October 3, 2001
Letter from applicant dated March 15, 1999
Handwritten statement, unsigned, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     941223 - 950301  COG

 Period of Service Under Review :
Date of Enlistment: 950302               Date of Discharge: 960927

 Length of Service (years, months, days):

         Active: 01 06 26
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 38

 Highest Rate: ABFAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)    Behavior: 3.00 (1)                OTA: 2.67

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MUC

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630600. Discharged in absentia.

 Chronological Listing of Significant Service Events :

960620:  Applicant arraigned, on charges of involuntary manslaughter, and leaving the scene of the accident, involving personal injury or death.

 960715:  Applicant delivered to Virginia Beach Correctional Facility for court.

 960715:  Civil Conviction: Virginia Beach Circuit Court for violation of driving under the influence and leaving the scene of an accident involving personal injury or death on 16 Feb 96.
 Sentence for driving under the influence: Jail for 12 months, operator's license suspended for 1 year. All punishments was suspended upon the following conditions: Good behavior for 12 months which includes no violations of class 1 or 2 motor vehicle laws, $250.00 fine, and complete alcohol safety action program (ASAP).
Sentence for leaving the scene of an accident involving personal injury or death: Jail for 3 years. All punishment was suspended upon the following conditions: Good behavior for 3 years which includes no violations of class 1 or class motor vehicle laws, $290.00 fine, and shall serve 3 months in jail.

 960719:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction and misconduct due to commission of a serious offense as evidenced by civilian conviction in Virginia Beach Circuit Court on 15 July 1996 for driving under the influence of alcohol and leaving the scene of an accident where death or injury was involved.
960806:  Applicant advised of his rights and having consulted 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.

960924:  Commanding Officer, USS JOHN C. STENNIS (CVN 74) recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction and misconduct due to commission of a serious offense.

960927:  Commander, Carrier Group SIX directed the applicant's discharge under other than honorable conditions by reason of misconduct due to civil conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged, in absentia, on 960927 under other than honorable conditions for misconduct due to civil conviction (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 Applicant states he has not been able to attain a number of jobs due to his other than honorable discharge. He requests an upgrade to honorable on the basis of having served jail time and having paid his debt to society. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. The Applicant’s discharge was proper and equitable. 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 . Evidence of continuing educational pursuits, a positive employment record, documentation of community service, certification of non-involvement with civil authorities, credible evidence that the Applicant is drug or alcohol free, are examples of verifiable documents that should be provided to receive consideration for clemency, based on post-service conduct. The Applicant did not provide sufficient documentation to warrant clemency. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his 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 9, effective
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT.

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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