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NAVY | DRB | 2002_Navy | ND02-01184
Original file (ND02-01184.rtf) Auto-classification: Denied


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

ex-EMFA, USN
Docket No. ND02-01184

Applicant’s Request
The application for discharge review, received 020823, 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. In the acknowledgement letter, the Applicant was informed he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area. Applicant advised he was not able to attend.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030602. 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. I was told at the time of my discharge that this was a rather routine request. I know it had been 15 years, but I feel this an unresolved part of my life. I have learned to take responsibility for my actions and to be honest and straight forward. I am asking for forgiveness and apologize for my mistakes. My only defense is that I was young and short sighted. I have now raised a family and have a successful career. I am very sorry. Thank you for your consideration.

 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)     820610 - 861219  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 861220               Date of Discharge: 880214

 Length of Service (years, months, days):

         Active: 05 02 00
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (24 months extension)

 Education Level: 13                        AFQT: 86

 Highest Rate: EM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.30 (6)    Behavior: 3.40 (6)                OTA: 3.63

Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, GCA, NEM

 Days of Unauthorized Absence: 8

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

850425:  NJP for violation of UCMJ, Article 111: Drunk driving.
         Award: Forfeiture of $428.00 pay per month for 2 months, reduction in rate, correctional custody for 30 days. All punishment suspended for 6 months. No indication of appeal in the record.

870924:  NJP for violation of UCMJ, Article 86: UA from unit from 870818 until 870820 (2 days), violation of UCMJ Article 87: Missing ship's movement.
         Award: Forfeiture of $200.00 pay per month for 1 month ($100.00 pay per month suspended for 6 months), restriction for 30 days to the USS ENTERPRISE with extra duty (20 days restriction suspended for 6 months), reduction to E-3 (suspended for 6 months). No indication of appeal in the record.

871019:  Vacation of Suspension: The reduction in rate to E-3 and forfeiture of $100.00 pay per month for 1 month which was awarded and suspended for a period of 6 months at NJP on 870924 is hereby vacated due to a subsequent violation of the UMCJ.

871120:  NJP for violation of UCMJ, Article 86: (4 Specifications) ; Specification 1 : UA from unit from 871016-871019 (3 days); Specification 2 : UA from appointed place of duty on 871020; Specification 3 : UA from appointed place of duty on 871025; Specification 4 : UA from appointed place of duty on 871029.
         Award: Confinement on Bread & Water for 3 days. No indication of appeal in the record.

880118:  NJP for violation of UCMJ, Article 86: UA from unit from 871229 until 880101 (3 days).
         Award: Forfeiture of $150.00 pay per month for 1 month, restriction to the USS ENTERPRISE with extra duty, reduction to E-2. No indication of appeal in the record.

880123:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
880123:  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.
880130:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense

880204:  CNMPC 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 880214 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. While he may feel that youth and immaturity were factors that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unsuited for further service. His service record is marred by award of non-judicial punishment (NJP) on four separate occasions for drunk driving and unauthorized absence, thus substantiating the misconduct for which he was discharged. It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges. In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. An upgrade to honorable conditions would be inappropriate. Relief denied.

Additionally, 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 any documentation of good character and conduct to mitigate his misconduct while on active duty. Relief denied.






Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until
10 Jan 89, Article 3630600, SEPARATION OF ENLISTED MEMBERS 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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