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NAVY | DRB | 2002_Navy | ND02-00770
Original file (ND02-00770.rtf) Auto-classification: Denied


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

ex-BMSN, USN
Docket No. ND02-00770

Applicant’s Request
The application for discharge review, received 020509, 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030131. 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. My name is (Applicant); I was a sailor for 9 1/2 years serving aboard several Navy vessels, "USS Saratoga CV-60" decommissioned but was aboard during the K_ S_ H_ error obtaining several medals and accommodations including the Battle "E", the Yosemite and the USS Stark and shore command Siam May port, FL., I'm submitting this request because I let my personal life effect my military judgment while going thru a separation/divorce and my next to the younger brother was murdered back here in Chicago it clouded my thoughts and I got in trouble. I'm asking for my discharge to be upgraded to Honorable because I recently had a slight stroke and went to the V.A. Hospital for help and they served me but that is where I found out due to this discharge I couldn't receive a V.A. card and had to pay for their service and it also stopped me from getting a great job that I wanted. For this reason this is why I'm asking for a review to my discharge upgraded from other honorable to Honorable so that I may obtain a V.A. card and also to resubmit for that job again it will be available again this July.
 I gave my country 9 1/2 years and was a good Navy Sailor until that incident so please review and upgrade my discharge please.
Thank You
Sincerely

P.S. If more info is needed please phone me at (HM) (number deleted) night, any (cell) (number deleted)

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     840628 - 841010  COG
         Active: USN                        841011 - 890510  HON

 Period of Service Under Review :
Date of Enlistment: 890511               Date of Discharge: 940216

 Length of Service (years, months, days):

         Active: 04 09 06
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4 (11 months extension)

 Education Level: 12                        AFQT: 23/24

 Highest Rate: BM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.37 (7)    Behavior: 3.40 (7)                OTA: 3.63

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, BER, NDSM, SSDR (3), NCM, NUC, NEM

 Days of Unauthorized Absence: 50

 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 :

890510   Applicant’s Form DD 214 reflects discharged for immediate reenlistment with an honorable characterization of service, dates of honorable service from October 11, 1984 – May 10, 1989.

931203:  Applicant to unauthorized absence 2200, 931203. Applicant apprehended by civil authorities on charges: Speeding and driving while suspended or revoked (license).

940103:  Civil Conviction: Duval County Court for violation of worthless checks (3) and reckless driving and driving on a suspended license.
 Sentence: County jail for 31 days.
940122:  Applicant from unauthorized absence 940122 (50 days).

940122:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 87: Missing movement.
         Award: Forfeiture of $552.90 per month for 2 months, restriction for 60 days, reduction to BMSN. No indication of appeal in the record.
940122:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction and misconduct due to the commission of a serious offense as evidenced by three findings of guilty in charges of worthless checks, (Duval County case numbers: 93-29448, 93-48268 and 93-63749), one finding of guilty in reckless driving and driving on a suspended license (Duval County case number: 91-23251) and recent Commanding Officer's nonjudicial punishment of 22 Jan 1994 in which Applicant charged with violation of article 86 UCMJ.
950122:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to submit statements.
940122:  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): [Considering his service of more than nine years and the inexcusable misconduct cited above, BMSN H_ (Applicant) has no potential to be a productive member of the Navy. He lacks the maturity, initiative and discipline required to develop into an effective member of STARK. BMSN H_ (Applicant) should be discharged now, and the characterization of Other Than Honorable assigned in order to maintain good order and discipline in STARK and to uphold the high standards of the naval service.]

940210:  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 940216 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: The Board has no authority to upgrade a discharge for the sole purpose of obtaining VA medical benefits or improving employment opportunities as requested by the Applicant. 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 was proper and equitable. Relief not warranted.

The Applicant will note from his summary of service that he is already in possession of an honorable discharge from his first enlistment.

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 authorities are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. After a complete review of the record, the Board determined that the Applicant’s discharge was proper and equitable. The Applicant provided no evidence of post service accomplishments to mitigate the misconduct for which he was discharged

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 5, effective
05 Mar 93 until 21 Jul 94, 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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