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NAVY | DRB | 2002_Navy | ND02-00505
Original file (ND02-00505.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
Ex-SR, USNR
Docket No. ND02-00505

Applicant’s Request
The application for discharge review, received 020311, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance hearing before a traveling panel closest to Orlando, Florida. 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 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 021206. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an impropriety in the characterization of the Applicant’s service and determined partial relief is warranted. The Board’s vote was unanimous that the character of the discharge shall be changed. The characterization of the discharge shall be upgraded to: GENERAL (UNDER HONORABLE CONDITIONS), authority: NAVMILPERSMAN, Article 3630600. The stated narrative basis of misconduct shall remain the same.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. Unaware of what it took to defend a country

2. Pressured to join a branch of the military

3. Too young & immature & unaware of how big of a responsibility it is to work for a nation where freedom is a luxury that is insured by the military

4. Unaware of the endless rewards the military provides for those who are willing to put there life on the line to defend this great nation

5. Did not realize the importance of what it takes to be part of the worlds greatest military

I realize the path I took during my first enlistment in the military was the wrong one. I have come to terms with what it takes to defend such a great nation I am proud to be part of. I Blame only myself for the self destruction of my first military experience. I realize that life is full of chances & I have had my share! Now I ask for one more to prove that I now have what it takes to be a great asset to my country. I have learned from my mistakes & I now understand the importance of defending this great nation. I now realize that the military is not only a job but a previlage. I believe there are two types of people, leaders & followers & to be either one of these people for the worlds greatest military would be an honor & a previlage. As your can see from the issues listed above, in the past I did not understand the importance of being a good leader or for that matter a good follower. I tried to change & bend the rules that were set by our government. I understand that rules & orders are made to be followed not broken. I love my country & everything it stands for & will take any means possiable to defend the freedom & the rights that have already been given to me at the price of the many lives of men's and women. I only hope that I will be given the chance again to defend a country that I feel so passionate about.

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION." None were found.


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Job/Character reference dated January 28, 2002
Job/Character reference dated January 25, 2002
Job/Character reference dated January 25, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 930714               Date of Discharge: 950821

 Length of Service (years, months, days):

         Active: 01 02 08
         Inactive: 00 11 00

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 42

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (1)    Behavior: 2.80 (1)                OTA: 3.00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.


 Chronological Listing of Significant Service Events :

940113:  Counseling: Advised of deficiency (performance and personal behavior), notified of corrective actions and assistance available. (An administrative error is noted here. The year should be 1995 since the Applicant was not ordered on to active duty until June 1994.)
940614:  Applicant ordered to active duty for 3 years.

 941115:  Counseling: Advised of deficiency (responsibilities), notified of corrective actions and assistance available.

941128:  Counseling: Advised of deficiency (performance, responsibilities and UA/late duty section 1 muster), notified of corrective actions and assistance available.


950217:  NJP for violation of UCMJ, Article 86: Failure to go at time prescribed to appointed place of duty, to wit: Duty Section I muster at 0700-0720, 10 Dec 94, violation of UCMJ, Article 108: Willfully damage the plastic casing of a fire extinguisher holder by punching with his fist on 12 Feb 95, a value of less than $100.00, military property of the united States, violation of UCMJ, Article 134 (2 specs): (1) With intent to defraud, falsely pretend to AT&T Telephone Communications, Inc. that he was authorized usage of a long distance telephone card number, then knowing the pretenses were false, by means thereof did wrongfully obtain from AT&T Telephone Company, telephone services of a value of about $289.58, to wit: Seaman Recruit used the calling card number and pin number assigned to another Seaman Recruit mother's to charge long distance telephone calls to her telephone bill between 5 Nov 94 to 30 Dec 94, (2) Drunk and disorderly which as prejudicial to good order and discipline on 12 Feb 95.
         Award: Forfeiture of $431.20 per month for 2 months, restriction for 30 days. Forfeiture suspended for 1 month. No indication of appeal in the record.
950331:  Counseling: Advised of deficiency (Not completing assigned task.), notified of corrective actions and assistance available.
950403:  Counseling: Advised of deficiency (UA from duty section muster), notified of corrective actions and assistance available.

950403:  Retention Warning: Advised of deficiency (Unauthorized absence from appointed place of duty, destruction of government property, wrongful use of an SR's telephone card, drunk and disorderly, resulting in nonjudicial punishment on 17 February 1995.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950404:  Counseling: Advised of deficiency (Room inspection), notified of corrective actions and assistance available.

950520:  Counseling: Advised of deficiency (performance x 2 on 14 May 95 and 20 May 95), notified of corrective actions and assistance available.

960623:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 1 Jun 95 (1 day).
         Award: Forfeiture of $431 per month for 2 months, restriction for 45 days, reduction to SR. No indication of appeal in the record. CO's letter has the date of NJP as 5Jun96 vice 23Jun96.
950724:  Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.
950724:  Applicant advised of his rights and having elected not to consult 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.

950724:  Commanding Officer, Naval Air Facility, Adak recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

950911:  BUPERS message response to NAF Adak, AK letter of 24 Jul 95 has been reviewed and no further action with regard to adsep is contemplated. This action appropriate because, as evidence by encl (1) of ref A, wrong notification procedures were used. IAW Ref B, mbrs being processed for misconduct (pattern/serious/civil conviction) are eligible for an OTH discharge and have the right to elect an admin board regardless of number of years service, therefore, must be processed using admin board procedures. If desired, cmd may reprocess mbr for adsep using admin board procedures.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW
Discussion

The Applicant was discharged on 950821 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 Naval Discharge Review Board noted an equity issue during the review of this case. The Other Than Honorable characterization of service was proper based upon the misconduct committed by the Applicant, but the record indicates the Applicant was improperly notified that the worst characterization of service he would receive was a General (Under Honorable Conditions). This equity issue warrants an upgrade to the Applicant's characterization of service to General (Under Honorable Conditions). Partial relief warranted.

The Applicant does not warrant any further upgrade based on issues of propriety. The Applicant requests an upgrade to an Honorable characterization of service. He contends he was ignorant of what service in the military required and he was too immature to serve when he entered the military. The Board found the Applicant's age, education level, and test scores qualified him for enlistment. While he may feel his immaturity was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirement of military discipline and demonstrated he was unfit for further service. 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 on this basis is denied.

The following is provided for the benefit of the Applicant. Normally, to permit relief, the discharge or characterization of the Applicant's service had to be improper or inequitable. 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 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), Change 9, effective
22 Jul 94 until 02 Oct 96, 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 " 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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