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NAVY | DRB | 2003_Navy | ND03-00113
Original file (ND03-00113.rtf) Auto-classification: Denied


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

ex-PRAA, USN
Docket No. ND03-00113

Applicant’s Request
The application for discharge review, received 20021025, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20030926. 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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. The discharge I received holds no “civilian” consequences. I had weapons stored in my room and as a “civilian” I would not receive any punishment for this. Please upgrade my discharge to honorable I have no felonies and have not been in any trouble since the military. Also enclosed are statements from Division Officer, Division “Chief”, Supervisor, and Parents.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Character/job reference, dated May 6, 1999
Character/job reference, dated May 12, 1999
Character reference from Applicant's parents, dated May 5, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19950825 - 19960731               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19960801             Date of Discharge: 19991102

 Length of Service (years, months, days):

         Active: 03 03 02
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 54

 Highest Rate: PRAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, SS

 Days of Unauthorized Absence: 22

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

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

 Chronological Listing of Significant Service Events :

990602:  Special Court Martial
         Charge I: violation of the UCMJ, Article 92 (28 specs):
         Specification 1: Failed to obey a lawful order by wrongfully possessing a .22 caliber Rifle Ruger in barracks room on 990219.
         Specification 2: Failed to obey a lawful order by wrongfully possessing a homemade Silencer/Suppressor in barracks room on 990219.
         Specification 3: Failed to obey a lawful order by wrongfully possessing a .12 Gauge Shotgun, Stevens Model 67 in barracks room on 990219.
         Specification 4: Failed to obey a lawful order by wrongfully possessing a .177 Caliber Pellet Rifle, Daisy Mode in barracks room on 990219.
         Specification 5: Failed to obey a lawful order by wrongfully possessing a .68 Caliber Paint Ball gun, Lone Star Ordnance Model F Illustrator in barracks room on 990219.
         Specification 6: Failed to obey a lawful order by wrongfully possessing a 44 Magnum BB Pistol, Desert Eagle in barracks room on 990219.
         Specification 7: Failed to obey a lawful order by wrongfully possessing a Tasko Scope in barracks room on 990219.
         Specification 8 Failed to obey a lawful order by wrongfully possessing a 110 gram container Sabre Self Defense Chemical spray, black and gold lettering in his 1984 Jeep on 990219.
         Specification 9: Failed to obey a lawful order by wrongfully possessing an Electric Tazer, Pocket Guard Black in color in his 1984 Jeep on 990219.
         Specification 10: Failed to obey a lawful order by wrongfully possessing one box of 25 .12 Gauge shotgun shells, Remington 2 3/4 1 oz shot/8 shot in his 1984 Jeep on 990219.
         Specification 11: Failed to obey a lawful order by wrongfully possessing three knives with blades over four inches in length in his 1984 Jeep on 990219.
         Specification 12: Failed to obey a lawful order by wrongfully possessing one box of Remington Rifle slugs with five rounds in his 1984 Jeep on 990219.
         Specification 13: Failed to obey a lawful order by wrongfully possessing one black expandable baton in is 1984 Jeep on 990219.
         Specification 14: Failed to obey a lawful order by wrongfully possessing one pair of brown Nunchukas wooden brown in color with dragons painted on the side in his 1984 Jeep on 990219.
         Specification 15: Failed to obey a lawful order by wrongfully possessing Ninja Caltrops, black in color and four pronged spikes, approximately 1 1/2 x 3/4 in barracks room on 990220.
         Specification 16: Failed to obey a lawful order by wrongfully possessing thirty six knives with blades over three inches in length in barracks room on 990220.
         Specification 17: Failed to obey a lawful order by wrongfully possessing one silver Throwing Star, engraved with "Konga Ninja" 4 1/4 in circumference with a hole in the middle in barracks room on 990220.
         Specification 18: Failed to obey a lawful order by wrongfully possessing three butterfly knives in barracks room on 990220.
         Specification 19: Failed to obey a lawful order by wrongfully possessing two straight razor knives his barracks room on 990220.
         Specification 20: Failed to obey a lawful order by wrongfully possessing three blackjacks in barracks room on 990220.
         Specification 21: Failed to obey a lawful order by wrongfully possessing one Slingshot 6 3/4 with surgical tubing attached to a leather strap with a wooden handle in barracks room on 990220.
         Specification 22: Failed to obey a lawful order by wrongfully possessing two Bull Whips in barracks room on 990220.
         Specification 23: Failed to obey a lawful order by wrongfully possessing two sets of Nunchukas in barracks room on 990220.
         Specification 24: Failed to obey a lawful order by wrongfully possessing one Brass Knuckles, gold in color, a belt buckle, 4 5/8" x 2 1/2 in barracks room on 990220.
         Specification 25: Failed to obey a lawful order by wrongfully possessing one Sai 19 1/2" x 6 7/8", black in color, and a leather strap wrapped around a handle in barracks room on 990220.
         Specification 26: Failed to obey a lawful order by wrongfully possessing one Sickle 16 1/2" x 7 1/2" with a wooden handle and metallic blade in barracks room on 990220.
         Specification 27: Failed to obey a lawful order by wrongfully possessing one Blow Gun 18 1/2" in barracks room on 990220.
         Specification 28: Failed to obey a lawful order by wrongfully possessing one Blow Gun 6' x 1" camouflage in color with a black in color sticker with white letters "Blow Gun Survival Weapon -- Warning: Keep away from children - see instructions-made in U.S.A." that was metal in barracks room on 990220.
         Charge II: violation of the UCMJ, Article 134 (3 specs):
         Specification 1:Violated the United States Code, Title 26, Section 5861, by possessing an unregistered firearm, to wit: a non-serialized silencer that was not registered in the National Firearms Registration and Transfer Record attached to a .22 caliber rifle on 990219.
         Specification 2: Violated Title 10, Section 134-3 of Hawaii Revised Statutes by failing to register with the police within three days after his arrival in the State a firearm, to wit: a .22 caliber Ruger Rifle, that he brought into the State of Hawaii on 990219.
         Specification 3: Violated Title 10, Section 134-3 of Hawaii Revised Statues by failing to register with the police within three days after his arrival in the state, a firearm, to wit: a 12-gauge shotgun, that he brought into the State of Hawaii on 990219.
         Findings: to Charge I and II and specifications thereunder, guilty.
          Sentence: Confinement for 30 days, hard labor without confinement for 45 days, forfeiture of $500 per month for 1 months, reduction to PRAA.
          CA 990616: Sentence approved and ordered executed, except for bad conduct discharge.

990623:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
990623:  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.
990804:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

990827:  Chief of Naval Personnel recommended Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense to Assistant Secretary of the Navy (Manpower and Reserve Affairs).

990909:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

990916:  CNPC 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 19991102 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: The Applicant states his offenses would not carry any consequences if he were a civilian. Even though the Applicant’s offense would not carry any punishment in the civilian world, the military does not view such offenses as minor infractions to maintain proper order and discipline. The Applicant’s service record is marred by a special court-martial conviction , thus substantiating the misconduct for which he was separated. The Applicant’s numerous offenses warranted processing for separation, normally under other than honorable conditions. Additionally, t he Applicant was convicted of violating civilian statutes that would carry civilian consequences. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable. Relief denied.

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, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. Relief is not warranted.

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 18, effective
12 Dec 97 until 29 March 2000, 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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