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NAVY | DRB | 2002_Navy | ND02-00961
Original file (ND02-00961.rtf) Auto-classification: Denied


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

ex-MMFN, USN
Docket No. ND02-00961

Applicant’s Request
The application for discharge review, received 020624, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The Applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030331. 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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. Sir my issues with the Navy is that I feel I was wrongfully discharged from the Navy because my wife became ill I feel the charge I was discharged with was brought up because of letter I wrote to congress and trying to write grievance against my chain of command.

Sir I also have an issue with being discriminated against and pre told that any route that I tried to stay in the Navy would be denied and that help due to other families was seemingly not for my family and the names that me and my family had to undergo just because my wife was ill.

Sir I know I can't have my career back and I do want it back because I love the Navy but I will not be dishonored as a man, husband, and father because of a bad chain of command that tried to make me look for trying to be a good family man.

Sir I hope with this evidence you see how commited to my family and the Navy and why I fought to stay in and fighting to try and get back in.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Recommendation for Accelerated Advancement program
Administrative Advancement Memorandum
Evaluation Report & Counseling Record (2 pages)
Letter from State of New Jersey Dept of Human Services Division of Youth and Family Service dated March 30, 2001
Applicant's Letter to Congressman R_ H_ (2 pages)
Letter from Command Officer USS DETROIT (AOE) to Congressman R_ H_, (3 pages)
DD Form 149 (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     000512 - 000515  COG
         Active: None             

Period of Service Under Review :
Date of Enlistment: 000516               Date of Discharge: 010816

 Length of Service (years, months, days):

         Active: 01 03 00
         Inactive: None

 Age at Entry: 33                          Years Contracted: 4

Education Level: 08                        AFQT: NMA

 Highest Rate: MMFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (1)     Behavior: 1.0 (1)                 OTA: 2.33

Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 23

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

000418:  Commander, Navy Personnel Command indicates that the following arrest were not disclosed by member: Grand Larceny Auto-Felony 871217; Uniformed Controlled Substance Act- Possession of Cocaine 921008.

000517:  You are being retained in the Naval Service, despite your fraudulent induction as evidenced by your failure to disclose required basic enlistment eligibility information. This decision is based on the information you provided the Recruit Quality Assurance Interviewer and if it is found that additional information has not been disclosed, this waiver is void and you could be subject to other judicial or administrative proceedings. Driving while intoxicated, 10/93, FAIRFAX, VA. 1 Year suspended license; Driving with suspended license, 7/95, PRINCE GEORGES, MD, Dismissed; Petty Larceny (value $500.00 or less), 4/92, PRINCE GEORGES, MD, Dismissed.

010224:  NJP for violation of UCMJ, Article 86 (2 Specifications): Absent from unit without authority; violation of UCMJ Article 87: Missing ship's movement.
         Award: Forfeiture of 1/2 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 21 days, reduction to next inferior pay grade (suspended for 6 months). No indication of appeal in the record.

010703:  NJP for violation of UCMJ, Article 83: Fraudulent enlistment; violation of UCMJ Article 128: Assault upon a commissioned officer.
         Award: Oral Admonition. No indication of appeal in the record.
010703:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of defective enlistment and induction-fraudulent enlistment, misconduct due to pattern of misconduct and misconduct due to the commission of a serious offense.
010703:          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.
010807:  Commanding Officer recommended discharge under other than honorable conditions by reason of defective enlistment and induction-fraudulent enlistment, misconduct due to pattern of misconduct and misconduct due to the commission of a serious offense. Commanding Officer’s comments (verbatim): [MMFN C_ (Applicant) has been on board DETROIT for eight months and has been a below average performer. MBR has been to mast on two different occasions. At the first mast, MMFN C_ (Applicant) was found guilty of two specs of UA and one spec of missing ship’s movement. He was found guilty at the second mast of attempted assault upon a superior commissioned officer and fraudulent enlistment based upon a ltr received from COMNAVPERSCOM. This sailor blatantly disregards Navy rules and regulations. His conduct has been detrimental to good order and discipline. MMFN C_ (Applicant) has no further potential for naval service. Therefore, I recommend his immediate discharge under other than honorable conditions.]

010815:  COMLOGRON TWO authorized 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 010816 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 believe his wife’s illness contributed to his actions, the Applicant’s service record is marred by award of non-judicial punishment (NJP) on two separate occasions for unauthorized absence, fraudulent enlistment and assault on a commissioned officer . The Applicant’s summary of service clearly reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service. Furthermore, the record is void of evidence the Applicant was a victim of discrimination or unfair treatment by his command. An upgrade to general (under honorable) conditions would be inappropriate. Relief denied.

 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 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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, 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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