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NAVY | DRB | 2002_Navy | ND02-00717
Original file (ND02-00717.rtf) Auto-classification: Denied


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

ex-RMSN, USN
Docket No. ND02-00717

Applicant’s Request
The application for discharge review, received 020425, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Conv. Of the Government. The Applicant requested a documentary record discharge review. The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030410. 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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. (Equity Issue) This former member avers that his personal problems stemming from a relationship contributed to and sufficiently extenuated his misconduct of record to warrant upgrade of his characterization of service.

2. (Equity Issue) This former member further 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:
Applicant's DD Form 214 (past and present
Thirty-seven pages from Applicant's service record
Request for reference dated November 28, 2000
Character reference dated October 13, 2000
Character reference dated December 13, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     910219 - 920203  COG
         Active: USN               920204 - 960710  HON

 Period of Service Under Review :
Date of Reenlistment: 961226             Date of Discharge: 990104

 Length of Service (years, months, days):

         Active: 02 00 09
         Inactive: None

 Age at Entry: 23                                   Years Contracted: 4

 Education Level: 12                                 AFQT: 66

 Highest Rate: RM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)                      Behavior: 2.50 (2)                OTA: 2.92

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM (2), 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 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

980921:  Defense Commissary Agency issued Applicant a memorandum regarding final notification of indebtedness.
981110:  NJP for violation of UCMJ, Article 92: Failure to obey order/regulation, violation of UCMJ, Article 134: Check, worthless, making and uttering - by dishonorably failing to maintain sufficient funds.
         Award: Forfeiture of $615 per month for 2 months, restriction and extra duty for 45 days, reduction to RMSN. No indication of appeal in the record.
981207:  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.
981214:  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.
990125:  Commanding Officer directed discharge with a 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 990104 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).

The Applicant contends that family problems at the time of his enlistment contributed to his misconduct and that these problems should be taken into account in assessing an upgrade to his discharge. Personal problems that a Sailor faces while on active duty, however, do not mitigate any misconduct undertaken by that service member. There is credible evidence in the record that the Applicant did violate the UCMJ and that he was accountable for his actions. This evidence of misconduct warranted a characterization of service normally under less-than-honorable conditions. The Board recognizes that serving in the Navy is very challenging but it must be noted that most Sailors serve honorably and well and, therefore, earn honorable discharges. In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The Applicant’s service is equitably characterized as general (under honorable conditions) due to the Applicant's nonjudicial punishment for Article 92 and Article 134 of the Uniformed Code of Military Justice. Relief on this basis is denied.

The following is provided in response from the member’s counsel for consideration of the former member’s post-service accomplishments. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge even though there is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. 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 may be considered. Verifiable proof of 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. E vidence of continuing educational pursuits, an employment record, documentation of community service, and certification of non-involvement with civil authorities are examples of documents that may be provided to the Board to receive consideration of relief based on post-service conduct. At this time, the Applicant has provided no such documentation for the Board to consider.



 The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge. 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 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION 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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