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NAVY | DRB | 2002_Navy | ND02-01218
Original file (ND02-01218.rtf) Auto-classification: Denied


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

ex-MMFA, USN
Docket No. ND02-01218

Applicant’s Request
The application for discharge review, received 020828, 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 030612. 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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My discharge was inequitable because it was based on an incident that I was accused of it was alcohol related. My captain took out an incident that happened in his past out on me.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     970716 - 971124  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 971125               Date of Discharge: 011210

 Length of Service (years, months, days):

         Active: 04 00 16
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (2 months extension)

 Education Level: 12                        AFQT: 65

 Highest Rate: MMFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (4)    Behavior: 2.75 (4)                OTA: 2.79

 Military Decorations: None

 Unit/Campaign/Service Awards: BER, GCM, NEM, SSDR, Flag Letter of Commendation (2)

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

001220:  Applicant arrested for physically controlling a vehicle while impaired by alcohol.
001229:  NJP for violation of UCMJ, Article 111: Physically control a vehicle on 001220, to wit: a passenger car while impaired by alcohol.
         Award: Restriction for 30 days, reduction to MMFA, remove recommendation for MM3. Restriction for 19 days suspended and reduction suspended for 6 months. No indication of appeal in the record.
011102:  Applicant arrested for physically controlling a vehicle while impaired by alcohol.
011116:  NJP for violation of UCMJ, Article 134: Disorderly conduct, drunkenness on 011102, violation of UCMJ Article 128 (3 specs): (1) Assault on MMFR by striking him with his hand on 011102, (2) Assault on MMFN by striking him with his hand on 011102, (3) Assault on ET1 by striking him with his hand on 011102.
         Award: Forfeiture of $609 per month for 2 months, restriction for 60 days, reduction to MMFA. No indication of appeal in the record.
011129:  Civil Conviction: Violation of driving while under the influence of alcohol.
 Sentence: Fine $500.00, AARP and alcohol assistance for 14 hours.
011201:  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 alcohol rehabilitation failure.
011201:  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.
011205:  Commanding Officer directed discharge general (under 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 011210 with a 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: In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable . A characterization of service of general (under honorable) conditions is warranted when the service member’s conduct constitutes a departure from that expected of a Sailor. The record is void of any evidence that the Applicant was treated unfairly by his commanding officer or that he was not responsible for his conduct. The Applicant’s service record is marred by award of non-judicial punishment (NJP) on two separate occasions for driving under the influence and assault, thus substantiating 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, and demonstrated he was unsuitable for further service. An upgrade to honorable would be very inappropriate. Relief denied. For the Applicant’s edification, Sailors guilty of committing a serious offense normally receive a discharge characterization of under other than honorable conditions.

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 an alcohol 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 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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