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NAVY | DRB | 2002_Navy | ND02-00800
Original file (ND02-00800.rtf) Auto-classification: Denied


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

ex-ET3, USN
Docket No. ND02-00800

Applicant’s Request
The application for discharge review, received 020513, 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 030214. 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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I was discharged after my command had found out that my wife and I had declared bankruptcy. My filing of bankruptcy was due to the fact that my executive officer had told me that he did not want to hear of me having any more financial problems. I felt that my family needed a new start and the only way to rid ourselves of our financial difficulties was to exercise our legal right of filing for debt relief. After I filed, my weapons officer had asked my one evening if everything with my finances was okay, I told him that I was taking care of it. I am assuming that by me making the statement of "I am taking care of it" was taken as me making a false official statement.
I was then discharged out of the Navy with a General Discharge under Honorable Conditions. With a R.E. code of 4.

 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)     910516 - 910604  COG
         Active: USN                        910605 – 950105  HON

 Period of Service Under Review :
Date of Enlistment: 950106               Date of Discharge: 970530

 Length of Service (years, months, days):

         Active: 02 04 25
         Inactive: None

 Age at Entry: 22                          Years Contracted: 6

 Education Level: 12                        AFQT: 63

 Highest Rate: ET2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (2)    Behavior: 4.00 (2)                OTA: 4 .00
 Performance: 4.00 (3)    Behavior: 2.00 (3)                OTA: 3 .33

 Military Decorations: None

 Unit/Campaign/Service Awards: SSBN DPI (6/Patrol's), NDSM, GCM

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

 Chronological Listing of Significant Service Events :

970425:  NJP for violation of UCMJ, Article 134 (2 specs): (1) Failure to pay debt of $414.19, (2) Failure to pay debt of $2488.6000, violation of UCMJ, Article 92 (2 specs): (1) Failure to obey an order by withholding personal indebtedness to avoid decertification from the PRP and/or removal of security clearance, (2) Failure to obey an order issued by LCDR to clear up his financial debt, violation of UCMJ, Article 107 (3 specs): (1) False official statement to LTJG, (2) False official statement to LCDR, (3) False official statement to LCDR.
         Award: Reduction to ET3. No indication of appeal in the record.
970425   Permanent decertification from the PRP. Commanding Officer’s comments: “Because of his (Applicant’s) commission of a serious offense, poor judgment, and contemptuous attitude toward the law, I find his untrustworthy and unreliable. Accordingly, he is permanently decertified from the PRP.”

970502:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
970502:  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.
970529:  Commanding Officer directed discharge characterization of general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments (verbatim): [Petty Officer D_s (Applicant’s) disregard for authority and blatant violations of the UCMJ were prejudicial to good order and discipline and indicate he has no potential for productive naval service…]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 970530 with a discharge characterization of 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).

Issue 1: 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.

The Applicant’s summary of service is marred by award of non-judicial punishment (NJP). The Applicant’s conduct, which forms the primary basis for determining the character of his 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 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. An upgrade to honorable would be inappropriate. Relief denied.

 With regard to the Applicant’s RE-4 Code. The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Therefore, the Board cannot grant relief on this issue.

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 be provided to receive consideration for relief, based on post-service conduct. The Applicant did not provide sufficient credible evidence to mitigate the seriousness of his misconduct. Relief denied.

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 14, effective
03 Oct 96 until 971212, Article 3630605, 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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