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NAVY | DRB | 2003_Navy | ND03-00109
Original file (ND03-00109.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND03-00109

Applicant’s Request
The application for discharge review was received on 20021022. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031114. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the applicant’s service was discovered by the NDRB. 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

Applicant’s issues, as stated on the application:

“My discharge was inequitable because it was based on one isolated incident 34 months of service with no other adverse action.”

Additional issues submitted by Applicant’s counsel/representative (American Legion):

“ 2. ( Equity Issue ) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. ”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Certificate of Achievement, dated April 14, 2001
Louisiana Technical College, Sidney N. Collier Campus, Test Scores Report, dated May 22, 2002
Letter to Applicant from Louisiana Technical College, Sidney N. Collier Campus, dated May 24, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19911113 – 19020526      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19920527             Date of Discharge: 19950711

 Length of Service (years, months, days):

         Active: 03 01 15         Does not exclude lost time
         Inactive: None

 Age at Entry: 18                                   Years Contracted: 4

 Education Level: 9*                                 AFQT: 62

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.88 (5)                      Behavior: 2.88 (5)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM with 1 Bronze Star, AFEM with 1 Bronze Star, SSDR

 Days of Unauthorized Absence: 58

*Service record reflects additional schooling (college)

 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 :

920603:  Retention Warning: Advised of deficiency (Non-swim qualified.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930829:  Retention Warning: Advised of deficiency (Not qualified to participate in the September 1993 Navy wide advancement examination.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940609:  NJP for violation of UCMJ, Article 117: Wrongfully use provoking words on 940411, violation of UCMJ, Article 134: Disorderly conduct by fighting on 940411.
         Award: Forfeiture of $466 per month for 1 month, restriction and extra duty for 30 days, reduction to AA. Forfeiture and reduction suspended for 6 months. No indication of appeal in the record.
940609:  Retention Warning: Advised of deficiency (Wrongfully use provoking speech on 940411 and disorderly conduct on 940411.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950411:  Applicant declared a deserter.

 950610:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 0630, 950312 to 0930, 950510 (58 days/surrendered).
         Charge II: violation of the UCMJ, Article 87:
         Specification: Missing ship’s movement on 950323.
         Charge III: violation of the UCMJ, Article 112A:
         Specification: Wrongful use of marijuana on 950511.
         Finding: to Charge I, II, III and the specifications thereunder, guilty.
         Sentence: Forfeiture of $569.00, confinement for 30 days, reduction to AR.
         CA action 950612: Sentence approved and ordered executed.

950610:  Applicant to confinement.

950613:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse as evidenced by all punishments under the UCMJ in your current enlistment.
950613:  Applicant advised of 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

950615:  Substance Abuse/Drug Evaluation: Applicant found not dependent on marijuana.

950615:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse.

950704:  Applicant released from confinement. Applicant awarded five days for good behavior.

950711:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950711 under other than honorable conditions by reason of misconduct due to absent without leave (30 days or more) (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. The Applicant stated that his discharge was inequitable because it was based on one isolated incident, within 34 months of service, with no other adverse actions.

 Though the civilian world treats some offenses with leniency because they are a first time incident on an otherwise clear record, the military does not view offenses that affect good order and discipline as minor infractions. The Applicant’s service record is marred by an award of a Summary Court-Martial and non-judicial punishment (NJP) for violation of UCMJ articles 117, 134, 86, 87, and 112a.

A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a Sailor. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. 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. Relief denied.
Issue 2. The Applicant’s representative submitted the following as issue 2: (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application. The Applicant’s counsel request the Board consider the Applicant’s post-service accomplishments in assessing the merits of his application for discharge upgrade.

 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, as examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct. The Applicant’s statements concerning post-service conduct, without substantial documented evidence, were found not to mitigate the offense for which he was discharged. Relief not warranted.
The Applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.



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.

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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