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NAVY | DRB | 2002_Navy | ND02-00658
Original file (ND02-00658.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND02-00658

Applicant’s Request
The application for discharge review, received 020409, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A personal appearance1 discharge review was conducted in Washington, D.C. on 030318. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service. The Board’s vote was three to two that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. Equity Issue. This former member requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Photographs submitted by Applicant, 2 pages
Certificate, Ohio Peace Officer Basic Training Program, dated September 2, 1994
Diploma, Associate in Science-Administration of Justice, College of the Redwoods, dated December 18, 1997
Employer verification, Officer of the Sheriff, Mahoning County, dated March 7, 2003
Police Check, dated March 4, 2003
Abstract Driver Records, dated March 7, 2003
Character reference, dated November 22, 2000
Character reference, dated October 5, 2001
Character reference, dated December 15, 2000
Character reference, dated September 15, 2001
Character reference, dated December 11, 2000
Character reference, dated October 6, 2001
Character reference, dated October 9, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               None
         Inactive: USNR (DEP)     880831 - 881113  COG

 Period of Service Under Review :
Date of Enlistment: 881114               Date of Discharge: 890530

 Length of Service (years, months, days):

         Active: 00 06 17
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 33

 Highest Rate: FR

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

881115:  Applicant briefed on Navy's policy on drug and alcohol abuse.

 890323:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order by possessing drug paraphernalia on 890226, to wit: seven plastic syringes; violation of UCMJ Article 134: Wrongfully possess without a prescription a schedule III controlled substance on 890226, to wit: methandrostenolone and testosterone.
         Award: Forfeiture of $349.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
890417:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
890417:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
890420:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments (verbatim): [FR _ (Applicant) was disenrolled from MR "A" School due to misconduct. His commission of a serious offense is supported by his violation of Article 92 and 134 (enclosure (3) and (4)). He is not recommended for reenlistment and has no potential for future Naval service. Therefore, it is recommended that FR _ (Applicant) be separated from the Naval service with an Other Than Honorable Discharge.]

890505:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
010209:  NDRB documentary record review Docket Number ND00-00951 conducted. Determination: discharge proper and equitable; relief not warranted.


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 890530 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).

Issue 1: 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. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Military service is very challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most Sailors and Marines serve honorably and well and therefore earn honorable discharges. In fairness to those Sailors and Marines, commanders and separation authorities are tasked to ensure that undeserving Sailors and Marines receive no higher characterization than is due. 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. The regulation does not clearly define this authority, but in fairness to those who have served honorably, the Board is very judicious in its application of this authority. After a complete review of the record, including the evidence submitted by the Applicant, the Board acknowledges the positive direction the Applicant’s life has taken since his discharge, and notes the Applicant’s long standing post-service employment as a Deputy Sheriff. However, the Board determined by a vote of three to two that the Applicant’s evidence of post service accomplishments was insufficient to mitigate the misconduct for which he was discharged. Relief denied.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), Change 7, effective
25 May 89 until 20 Aug 89, 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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