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NAVY | DRB | 2002_Navy | ND02-00718
Original file (ND02-00718.rtf) Auto-classification: Denied


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

ex-CMCN, USN
Docket No. ND02-00718

Applicant’s Request
The application for discharge review, received 020429, 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, the Applicant obtained representation by the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030124. 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, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I feel that the type of discharge that I was issued was inequitable because it was based on one isolated incident.

2. I was accused of being intoxicated on duty. No tests were administered to determine if it was inebriated.

3. I had an exemplary record of service to include a Good Conduct Medal. prior to this incident.

4. I feel that the type of discharge that was issued was inequitable because I was told that I would be issued a "General Under Honorable Condition" discharge.

Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on 11/12/02 and the following comments are hereby submitted.

We concur with his contention that his discharge be upgraded.

We refer this case to the Board for careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrade to Honorable.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     891130 - 900319  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 900320                        Date of Discharge: 940819

 Length of Service (years, months, days):

         Active: 04 05 00
         Inactive: None

 Age at Entry: 26                                   Years Contracted: 4 (12 month extension)

 Education Level: 7 HSDG Status            AFQT: 45

 Highest Rate: CM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (6)    Behavior: 3.47 (6)                OTA: 3.70

 Military Decorations: None

 Unit/Campaign/Service Awards: NER, GCM, NDSM, SASM, SSDR (2)

 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 :

900322:  Applicant retained in the Naval service, despite defective enlistment and induction due to fraudulent entry into naval service as evidenced by failure to disclose pre-service civil involvement consisting of the following: 8802 - Speeding ticket Mandeville, LA Fine $115.00. Paid, 8809 - Improper passing Slidell, LA. No Fine. Dismissed. Further deficiencies in performance or conduct may result in processing for administrative separation.

940319   Extended this date for a period of 12 months.

940616:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 91 (3 specs):
         Specification 1: Disobey order of a CPO.
         Specification 2: Disrespectful in language to CPO.
         Specification 3: Assault on a CPO.
         Charge II: violation of the UCMJ, Article 112:
         Specification: Drunk on duty.
         Finding: to Charge I and II and the specifications thereunder, guilty.
         Sentence: Forfeiture of $413.00, confinement for 30 days, reduced to CMCN.
         CA action 940623: Sentence approved and ordered executed except for that the confinement of 30 days is hereby reduced to confinement for 13 days and restriction for 34 days.

940622:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and alcohol abuse rehabilitation failure.
940622:  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.
940627:  Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense and alcohol abuse rehabilitation failure. Commanding Officers comments (verbatim): [Recommend that the member receive a characterization of service of GENERAL. Constructionman E_ (Applicant) is a superior construction mechanic and has provided good military service over the past four plus years. His problems stem from respecting authority and his inability to overcome his dependence on alcohol.]

940805:  BUPERS 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 940819 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).

 Issues 1-3: The Board’s charter limits its review to a determination on the propriety and equity of the discharge. In the Applicant’s case the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. The Applicant believes his discharge was inequitable because it was based on an isolated incident. A Summary Court Martial for violation of UCMJ Article 91 and Article 112 mars the Applicant’s service. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. The receipt of commendatory awards and favorable performance evaluations during an Applicant’s enlistment, do not guarantee an honorable discharge. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure of that expected of a sailor. While the NDRB agrees that the Applicant had good performance evaluations, his service is equitably characterized as being performed under other than honorable conditions due to his own misconduct. 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.

 Issue 4: The Board disagrees with the Applicant’s claim that his discharge was
inequitable because he was told that he would be issued a “General Under Honorable
Condition” discharge. The Applicant was officially notified in writing of the intended
recommendation for discharge and that the characterization of his service may be other
than honorable . Even though his Commanding Officer recommended a general
characterization of service, the Bureau of Naval Personnel appropriately directed the
discharge be characterized with the least favorable characterization allowed for the
Applicant’s misconduct. Relief not warranted.
The following is provided for the Applicant’s information: T here 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, are examples of verifiable documents that should be 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 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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