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NAVY | DRB | 2002_Navy | ND02-01012
Original file (ND02-01012.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND02-01012

Applicant’s Request
The application for discharge review, received 020712, 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 030414. 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. The reason I would like to request a discharge upgrade to an honorable is because I feel that I was taken advantage of. When I was in the Navy, I was young and naïve and had been shown some papers that needed to be signed by me. I had signed these pages not knowing the consequence. Now because of those papers I do not have an honorable discharge. I would like to know those papers that I signed and why they caused so much consequence. Also, when they discharged me, I had a check for 50 dollars coming and they kept it saying that I owed them 50 dollars. They left me in the street with no money and nowhere to go I had my dad wire me money, and my care was impounded because I could not afford the payments while I was restricted to the ship. I had recently went bankrupt from the money I owed to the car dealers. I owed 11,000 dollars. Also from the day I was discharged for 5 years they took my taxes away from me because of the Navy. All I would like is to have a chance to change my other than honorable discharge to an honorable discharge. I just don't understand why they did this to me. As far as I 'm aware of on my discharge is that it says misconduct.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Statement of service from Department of Veterans Affairs dated September 24, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     950130 - 950206  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 950207               Date of Discharge: 960209

 Length of Service (years, months, days):

         Active: 01 00 03
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 36

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.00 (1)    Behavior: 1.00 (1)                OTA: 3.00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 3

 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 :

951102:  NJP for violation of UCMJ, Article 86 (6 specs): (1) Unauthorized absence from 0600, 951002 to 0600, 951004 (2 days/surrendered), (2) Unauthorized absence 0600-1400, 950918, (3) Unauthorized absence from 0600, 951009 to 0600, 951010 (1 day), (4) Unauthorized absence 0600-1400, 951015, (5) Unauthorized absence 0600-0630, 951019, (6) Unauthorized absence from 0600-0630, 951024, violation of UCMJ, Article 91: W illfully disobey a lawful order from a first class petty officer by failing to report to personnel to obtain a new ID card on 951017, violation of UCMJ, Article 92: Willful dereliction of duty by sleeping during working hours on 951029, violation of UCMJ, Article 108: Loose a shipyard badge without proper authority, military property of some value, on 951023.
         Award: Forfeiture of $427 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
951102:  Retention Warning: Advised of deficiency (Unauthorized absence from 2 October 1995 to 4 October 1995, unauthorized absence from 0600, 18 September 1995 to 1400, 18 September 1995, unauthorized absence from 0600, 9 October 1995 to 0600, 10 October 1995, unauthorized absence 0600, 15 October 1995 to 1400, 15 October 1995, unauthorized absence 0600, 19 October 1995 to 0630, 19 October 1995, unauthorized absence from 0600, 24 October 1995 to 0630, 24 October 1995, willfully disobeying a lawful order from a First Class Petty Officer, on 17 October 1995, willful dereliction of duties by sleeping during working hours on 29 October 1995, and for losing a shipyard badge, military property, on 23 October 1995.) , notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
951204:  NJP for violation of UCMJ, Article 92: Willful dereliction in the performance of duty by sleeping during working hours on 951125, violation of UCMJ, Article 107: Make to a PO1 a false official statement on 951114, violation of UCMJ, Article 112A: Wrongfully use LSD on 951102.
         Award: Forfeiture of $427 per month for 2 months, restriction and extra duty for 45 days, reduction to AR. No indication of appeal in the record.
951205:  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 misconduct due to drug abuse.
951205:  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.
951227:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse. Commanding Officer’s comments (verbatim): [AR E_’s (Applicant) misconduct is incompatible with naval service. I recommend AR E_ (Applicant) be expeditiously discharged from the Navy with an other than honorable discharge by reason of misconduct due to commission of a serious offense and by misconduct due to drug abuse.]

960119:  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 960209 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. The Applicant’s service record is marred by award of non-judicial punishment (NJP) on two separate occasions for various offenses including making a false official statement, unauthorized absence and illegal drug use. This substantiated the misconduct for which he was separated . 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. Even though the Applicant believes he was taken advantage of by the Navy and does not understand “why they did this to me,” he was afforded all of his rights. The Applicant waived all but one of his rights, including legal counsel and an administrative board, in the letter dated 951205. The Board found the discharge was proper and equitable. Relief denied. Regarding the garnishment of wages, the Applicant may petition to the Board of Correction of Naval Records (BCNR) to correct any perceived errors.

There 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, certification of non-involvement with civil authorities and credible evidence that the Applicant is living a drug free life style, 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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