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NAVY | DRB | 2002_Navy | ND02-01099
Original file (ND02-01099.rtf) Auto-classification: Denied


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

ex-FN, USN
Docket No. ND02-01099

Applicant’s Request
The application for discharge review, received 020801, 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 050301. 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 am requesting to have my discharge changed to an honorable discharge for reason of obtaining Computer Engineer B.S. from Coleman College. I would like to take advantage of the G.I. Bill for payment to continue education. Without the G.I. Bill to help me, I will not be able to pay for further schooling.

 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)     910816 - 920607  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 920608               Date of Discharge: 960303

 Length of Service (years, months, days):

         Active: 03 08 26
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 12                        AFQT: 51

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.43 (6)    Behavior: 3.46 (6)                OTA: 3.50

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM, SSDR(2 ND ), NAVY"E"RIBBON (2 ND )

 Days of Unauthorized Absence: 157

 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 :

940614:  Retention Warning: Advised of deficiency (failure to meet financial obligations in a timely manner, failure to pay meet monthly payment obligations incurred as a result of credit obligations for the purchase of merchandise and/or services.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
950427:  NJP for violation of UCMJ, Article 134: (5 Offenses), Writing checks with insufficient funds to the Navy Exchange, San Diego, CA on 950208, 950209, 950211, 950213, and 950228.
         Award: Restriction and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.

960222:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86.
         Specification 1: Unauthorized absence 950715 – 951219, [157 days/R]
         Findings: to Charge I and specification 1 thereunder, guilty.
         Sentence: Confinement for 30 days, 2 months HLWOC, forfeiture of $500.00 pay per month for 2 months, reduction to E-2.
         CA 960318: Approved findings and sentence.

960317:  Released from confinement and transferred to parent command.

960322:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your Commanding Officer's NJP on 950427, and your special court-martial conviction on 960222.
960322:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
960326:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your Commanding officer's NJP on 950427, and your special court-martial conviction on 960222.

960426:  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 960303 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).
Responding to the Applicant’s issue, the Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. The Applicant's other than honorable discharge was proper and equitable. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge. The Applicant's misconduct is clearly documented. He acknowledged and waived his rights to administrative review. He was notified that by waiving his rights and accepting an other than honorable discharge, he could possibly encounter significant difficulties in obtaining employment and other benefits. The Applicant was afforded the appropriate due process at every opportunity. The NDRB found the Applicant's service record devoid of any mitigating or extenuating factors that would warrant an upgrade of the Applicant's discharge to an honorable characterization. Relief denied.
The following is provided for the edification of the Applicant. There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. However, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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 may be considered. Verifiable proof of 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. E vidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct. While the Board respects the many character references that the Applicant submitted, this documentation is not sufficient for the Board to permit relief.

 The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge. 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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