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NAVY | DRB | 2002_Navy | ND02-00686
Original file (ND02-00686.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND02-00686

Applicant’s Request
The application for discharge review, received 020418, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The Applicant requested a documentary record discharge review. The Applicant listed AMVETS as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030116. 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. While on active duty, I requested a hardship discharge due to the divorce of parents, which I was having a very hard time with. I consulted Legal Counsel on board ship and he denied my request. I don't even know if my request was passed along to my Superior Officer. I was very upset and told legal counsel the in 6 months I'll be out of here and began getting into problems with the Navy. Finally the legal counsel said that I had gotten into enough trouble to get a discharge. I accepted the Under Other Than Honorable Conditions and got out of the Navy. I was only 18 years old at the time. Recently I realized that I had made a terrible mistake and that is the reason for my request for an upgrade on my discharge.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from National Personnel Record Center
Copy of DD Form 214
Notice of Administrative Board Procedure Proposed Action (2 pages)
Statement of Awareness and Request for, or Waiver of, Privileges (2 pages)
Court Memorandum (NJP)
Court Memorandum (Summary Court Martial) (2 pages)
COMNAVMILPERSCOM Discharge Authorization Message (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     881007 - 881226  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 881227               Date of Discharge: 901121

 Length of Service (years, months, days):

         Active: 01 09 01
         Inactive: None

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

 Education Level: 12                        AFQT: 72

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.93 (3)    Behavior: 2.86 (3)                OTA : 2.80

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 24

 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 :

900201:  Retention Warning: Advised of deficiency (Violation of Article 86: Failure to go to appointed place of duty, to wit: SNM did, on or about 1300, 900127, without authority, fail to go at the time prescribed to his appointed place of duty, at which he was required to be, to wit: BEQ S-408 RM 201 for room inspection. Violation of Article 92: (2 Specifications), failure to obey a lawful order/regulation, to wit: SNM violated a lawful written order by wrongfully failing to prepare his room for room inspection, on or about 900127, and failure to obey a lawful order/regulation, to wit; SNM violated a lawful written order by wrongfully using tobacco products in BEQ S-408, on or about 900130), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
900201:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty, to wit: SNM did, on or about 1300, 900127, without authority, fail to go at the time prescribed to his appointed place of duty, at which he was required to be, to wit: BEQ S-408 RM 201 for room inspection ; violation of UCMJ Article 92: (2 Specifications), failure to obey a lawful order/regulation, to wit: SNM violated a lawful written order by wrongfully failing to prepare his room for room inspection, on or about 900127, and failure to obey a lawful order/regulation, to wit; SNM violated a lawful written order by wrongfully using tobacco products in BEQ S-408, on or about 900130 .
         Award: Forfeiture of $168.00 pay per month for 1 month, restriction to SO-408 for 14 days, extra duty for 14 days. No indication of appeal in the record.

900223:  NJP for violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty from 0730-1000, 900203 from restriction muster.
         Award: Forfeiture of $362.00 pay per month for 1 month (suspended for 3 months), correctional custody for 30 days. No indication of appeal in the record.

901018:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86: Unauthorized absence from 900814 to 900826 (12 days/Surrendered), from 900828 to 900904 (7 days), from 900920 to 901002 (12 days/Surrendered). Charge II: violation of the UCMJ, Article 87: Missed ships movement on 900816 to 900922. Charge III: violation of the UCMJ, Article 134: Unlawful entry into an officers stateroom.
         Finding: to Charge I, II, and III, and the specification thereunder, guilty.
         Sentence: Confinement for 30 days, reduced to E-1.
         CA action 901018: Sentence approved and ordered executed.

901019:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense evidenced by non-judicial punishment for violation of the Article 92 (2 specifications) and summary court-martial for violation of Articles 87 and 134.
901020:  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.
901028:  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): [AR F_’s (Applicant’s) continued misconduct warrants separation. His continued presence is detrimental to morale and discipline on board AMERICA. AR F_ (Applicant) has no potential for further useful military service. I strongly recommend that AR F_ (Applicant) be discharged immediately from the naval service under Other Than Honorable conditions by reason of misconduct due to the commission of a serious offense.]

901031:  CNMPC directed the Applicant's discharge under other than 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 901121 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: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. The Board found the Applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that youth and his parent’s divorce were factors that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unsuited 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 denied.

Additionally, 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 and certification of non-involvement with civil authorities are examples of verifiable documents that should have been provided to receive consideration for relief, 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 15560A), Change 8, effective
21 Aug 89 until 14 Aug 91, 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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