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NAVY | DRB | 2002_Navy | ND02-00446
Original file (ND02-00446.rtf) Auto-classification: Denied


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

ex-AA, USNR
Docket No. ND02-00446

Applicant’s Request
The application for discharge review, received 020226, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293. Subsequent to the application for review the applicant obtained Disabled American Veterans as his representative.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021104. 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 3630605.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. I would like for the review board to consider upgrading my general discharge to honorable, so that I may receive my G.I. Bill. I have no way of paying for the remaining credit hours needed to obtain my criminal justice degree. I understand that I made a big mistake while I was in the Navy, but I was very immature person at the time. I hope that the review board will take into consideration the fact that I am a stand-up citizen and an active member of my community after I was discharged, I attended San Bernardino Valley College were I played football and after two years I earned a scholarship to Tenn Tech Univ, this is where I am currently going to school, but my scholarship has run out, please help me to continue my search for a good career.

 2. (DAV Issue) After a review of the Former Service Members (FSM) DD Form 293 Application for the Review 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 his request that he be given the opportunity to change the narrative of his character of service separation from General (Under Honorable Conditions) to a Honorable Discharge.

The (FSM) joined the United States Naval Service on September 7 1994 until March 11 1997 where he served without any non- judicial punishments until the third year of his enlistment. During his military tenure when he was charged multiple offences to include disrespect to a Petty Officer and several charges of absence without leave again according to the Judge Advocate Attorney and Commander who subsequently recommended his separation from military service for what they described as continued misconduct. (FSM) states that he is sorry for his youthful and immature behaviors that he demonstrated in the past and seeks now to better his life through seeking positive ways by requesting a upgrade in his military separation Discharge General (Under Honorable Conditions) to a Honorable Discharge.

The (FSM) seeks now to up-grade his discharge also in an effort receive Educational benefits and entitlements for his military service and to reassess his life in hopes for a better future. The (FSM) now seeks an equitable standard be applied as well as equity in treatment in seeking the boards' forgiveness for his misconduct behaviors. The (FSM) sincerely hopes that by respectfully requesting and being granted a Honorable Discharge from the Navy, he feels this is a matter of Honor and Respect he will cherish throughout his lifetime. The (FSM) also states he had always tried to achieve Honor and Respect while on recruit training duty in the Naval Service. 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 correct the general character of his discharge to Honorable.

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:
Notice of Grade Change or Incomplete Removal from Tennessee Technical University

PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 940416               Date of Discharge: 970311

 Length of Service (years, months, days):

         Active: 02 06 05
         Inactive: 00 04 22

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 12                        AFQT: 42

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB                  Behavior: NOB             OTA: NOB

Military Decorations: None

 Unit/Campaign/Service Awards: MUC, AFEM, SSDR, NDSM

Days of Unauthorized Absence: None

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

GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

 Chronological Listing of Significant Service Events :

940907:  Ordered to active duty for 36 months under the Airman Apprenticeship training program.

951115:  NJP for violation of UCMJ, Article 92: Failure to obey order.
         Award: Forfeiture of 1/2 months pay per month for 1 month (suspended for 6 months), reduction to E-1. No indication of appeal in the record.

960712:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of 1/2 months pay per month for 2 month. No indication of appeal in the record.

960924:  NJP for violation of UCMJ, Article 91: Disrespect toward a superior petty officer.
         Award: Restriction to base for 30 days, reduction to E-2. No indication of appeal in the record.
961025:  Applicant notified of intended recommendation for discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your NJP conviction of 960924.
961025:          Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to submit statements in own behalf either verbally or in writing and to obtain copies of the documents used to support the basis for the separation.
970226:  Commanding Officer, Strike Fighter Squadron 147 recommended discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense.

970306:  Commanding Officer Naval Air Station, Lemoore directed the applicant's discharge general under 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 970311 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).

 Responding to the Applicant’s first issue (a request for an upgrade so that he can receive educational benefits), the Board noted that the Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Relief denied.

The Applicant’s representative submitted the following as issue 2: that the Applicant’s post-service conduct warrants a recharacterization of his discharge. While t he NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV), 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The Applicant provided a letter regarding a Notice of Grade Change, presumably to indicate he is taking classes at Tennessee Technical College. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits (transcripts), a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities in order for consideration for relief based on post-service conduct. At this time the Applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief denied.







Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 971212, Article 3630605, 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 " 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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