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NAVY | DRB | 2003_Navy | ND03-00591
Original file (ND03-00591.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND03-00591

Applicant’s Request
The application for discharge review was received on 20030221. 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 lists the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040128. 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 stated

 Applicant’s issues, as stated on the application:

1. “To Whom It May Concern,

I would really appreciate it if you would change my discharge so I may reinlist into the Navy. I would like to make a career out of the Navy if given another chance. The Navy was never just another job to me. The Navy made me realize that I was part of something important. I would really like to have the opportunity of being a part of that again. Therefore I’m asking you to please change my discharge so I may continue serving my country. If I were given another opportunity, I will not take it for granted because serving the Navy is what I would like to have as my career in life. Thank you very much for your consideration.

Sincerely Yours,

N_ S_” (Applicant)

Additional issues submitted by Applicant’s representative (Disabled American Veterans):

“2. Equity Regarding the character of discharge

3. Upgrading Discharge based on Equity and Good conscience.

4. Based on the Applicant’s contentions, which are clearly stated on DD Form 293, and an overview of the available records, it is important that the Board consider all contributory factors surrounding this case coupled with the impetuosity of his youth. Although infractions did constitute military misconduct he is not a criminal. Therefore, with all the evidence as set forth herein, we humbly request any and all reasonable doubt that has occurred be resolved in favor of the Applicant and corrective action be taken to upgrade the Applicants discharge favorably.

These issues do no supersede any previous issues.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1 and 4)
Character reference, dated February 5, 2003
Character reference, dated February 4, 2003
Character reference, dated January 24, 2003
Character reference, dated January 23, 2003
Character reference, dated January 26, 2003
Character reference, dated January 24, 2003
Character reference, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     000624 - 000731  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 000801               Date of Discharge: 010316

 Length of Service (years, months, days):

         Active: 00 07 14
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 49

 Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 3

 * No Marks Found

 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 :

010228:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700, 000205 to 2200, 010208 (3 days), violation of UCMJ, Article 92: Failure to obey a lawful order/regulation on 010219 by wrongfully drinking an excessive amount of cough syrup, violation of UCMJ, Article 108: Destruction of military property on 010219, to wit: barracks room, by putting a hole in the wall, damage totaling $106.52.
         Award: Forfeiture of $521 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
010228:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
010228:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
010301:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

010302:  Chief of Naval Education and Training 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 20010316 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. Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

Issues 2 & 3. The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, a procedural error or inequity must have existed during the period of enlistment in question. No such error nor inequity is evident during the Applicant’s enlistment. Additionally, 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. Relief not warranted.

Issue 4. The Applicant’s counsel highlighted that some of the applicant’s problems in the Navy can be attributed to his "youth and immaturity". The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
The following is provided for the edification of the Applicant. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.

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 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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