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NAVY | DRB | 2003_Navy | ND03-00765
Original file (ND03-00765.rtf) Auto-classification: Denied


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

ex-SN, USN
Docket No. ND03-00765

Applicant’s Request
The application for discharge review was received on 20030326. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance discharge review before a traveling panel closest to Norfolk, VA. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. area. The NDRB also advised that the Board first conducts a documentary (record) review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040224. 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. “I would like to apologize and assume full responsibility for the personality conflicts in which I was involved. I am intense and am working on positive ways to channel my energy. I have enrolled in an anger management course.

On the positive side, I received HIGH excellence in all of my conditioning reports. Consisting of push-ups, and running. I always showed up to work early or on time. Checked-in with the department regularly and never skipped work nor blamed others for my problems. Completed each task to the best of my ability. Never gave up and most certainly gave a 110% effort all the way. Always obeyed my chain of command. Finished every task then questioned any problems that had been troubling or not understood.

With a fresh start I would be able to further myself as a productive and value asset to the service. When I left the service in October of 2002, I was able to use this opportunity to reevaluate my situation of where I was going and where I wanted to be in life. Now that it has been over a year since I have left I have now earned an undergraduate degree in Criminal Justice Studies With this opportunity I do realize that the Navy could potentially pay for me to get my Jurist Doctorate. I anticipate to take the LSAT very soon. With my score I anticipate to become a candidate of a Law School that I would like to attend. Upon becoming a candidate and being accepted in three years time I will have earned a law degree. I would very much like to join the Navy JAG program.

If you have any questions please contact me at xxx-xxx-xxxxx. I appreciate everything the board has been able to do for me this far.

Sincerely yours, J_ B_ S_ (Applicant)”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter to the Applicant from Congressman E_ S_, dtd Jan 27, 2003
BCNR’s response to congressional inquiry dtd Jan 21, 2003
3 Copies of DD Form 214 (Member – 4)
2 Copies of DD Form 214 (Member – 1)
 Memo from LTJG T_ to Applicant, dtd Jun 03, 2002, concerning Informal Grievance Findings and Resolutions (2 pages)
5 pages from Applicant’s medical record
 2 copies of Applicant’s Notification of Separation dtd Aug 13, 2000 (2 pages)
Applicant’s appeal from nonjudicial punishment dtd Aug 25, 2002 (4 pages)
Applicant’s request for extension of time to appeal, dtd Aug 7, 2002
Applicant’s NJP appeal dtd Aug 1, 2002 (7 pages)
Complaint of Wrongs form (not completed) (2 pages)
Letter of Support for Applicant from S_ J. R_, dtd Apr 15, 2003 (2 pages)
 Payment of Selective Enlistment Bonus (SEB)
2 copies of MEPS San Diego, CA Recruit orders, dtd Oct 25, 2001
Applicant’s Authorization For Release of Medical Information, dtd Oct 15, 2001
 SF-86, Applicant’s Security Clearance Application with Signed Authorization by Applicant to release information, dtd Oct 15, 2001
 Travel Certificate Separation Without Orders (NAVPERS 4650/22) DTD Sep 20, 2002
Enlisted Activity Gain Report
Leave Status Report
Permanent Change of Station (PCS) Arrival Report
LES Address Update Change Report
Excerpt from the Naval Justice School Publication concerning the Naval Discharge Review Board and the Board for Correction of Naval Records (2 pages
Blank DD Form 293 with instructions (4 pages)
Excerpt from the Naval Justice School Publication concerning eligibility for benefits based on type of discharge (2 pages)
Copy of Applicant’s PCS order to report USS KEARSAGE, dtd Jan 18, 2002
CO, USS KEARSAGE’S ltr to Applicant, undtd, Adverse Performance Evaluation Report
Applicant’s Awards Service Record Page (NAVPERS 1070/604)
Applicant’s Sate of Legal Residence Certificate (DD Form 2058) dtd Nov 5, 2001
MEPS’ testing results, enlistment documents, PCS orders (10 pages)
Applicant’s Acknowledgement of Appeal Rights as result of Captain’s Mast dtd Aug 1, 2002
Restriction and Extra Duty Orders, dtd Aug 1, 2002 (3 pages)
Excerpt from the Naval Justice School Publication concerning Enlisted Administrative Separation Processing and Review (2 pages)
Applicant’s Preseparation Counseling Checklist & Applicant’s Travel Voucher (8 pages)
Applicant’s High School diploma
22 pages of medical record
Duplication of Applicant’s Social Security Card ID
Duplication of Applicant’s Certificate of Live Birth
Applicant’s BCNR application (DD Form 149) dtd 30 May 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     011015 - 011024  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 011025               Date of Discharge: 020920

 Length of Service (years, months, days):

         Active: 00 10 26 (Doesn’t exclude confinement.)
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 14                        AFQT: 66

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*        Behavior: NMF*  OTA: NMF*

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

*No Marks Found in service record.

 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 :

010802:  NJP for violation of UCMJ, Article 91 (3 Specs): Disrespect; violation of UCMJ Article 134: Communicate a threat.
         Award: Forfeiture of $250 pay per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.
020530:  NJP for violation of UCMJ, Article 86 (4 Specs): Fail to go/go from appointed place of duty and UA from 0550-0645, 02MAY28.
         Award: Forfeiture of $300 pay per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
020530:  Retention Warning: Advised of deficiency (violation of UCMJ, Article 86 – unauthorized absence and fail to go to appointed place of duty and violation of the UCMJ, Article 107 – false official statement.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020711:  NJP for violation of UCMJ, Article 86 (3 Specs): Fail to go/go from appointed place of duty and UA from 2130, 08JUN02, 0600, 15JUN02, 0600, and 0600, 22JUN02; violation of UCMJ Article 91 (3 Specs): Disrespect; violation of UCMJ Article 92: Violate a lawful general order.
         Award: Correctional custody for 30 days. No indication of appeal in the record.

020809:  NJP for violation of UCMJ, Article 86: Unauthorized absence; violation of UCMJ Article 90: Willfully disobey a lawful order; violation of UCMJ Article 91: Disrespect.
         Award: Confinement on bread and water for 3 days. No indication of appeal in the record.

020813:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to the commission of a serious offense. [Applicant provided this information.]

020825:  Applicant appeal from nonjudicial punishment imposed on 30 May 2002, 1 July 2002 (2 times) and 1 August 2002. [Information was provided by Applicant.]

020902:  NJP for violation of UCMJ, Article 80: Attempting to break restriction; violation of UCMJ Article 92 : Violate a lawful general order.
         Award: Forfeiture of $300 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
020920:  Applicant discharged Under Other Than Honorable Conditions by reason of misconduct due to commission of serious offense.
Administrative discharge package not contained in service record.

 PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020920 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. When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by five nonjudicial punishments (NJP’s). The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. An upgrade of the Applicant's discharge to an honorable characterization is not warranted. 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. At this time the Applicant has not submitted sufficient documentation for the board to consider.

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), re-issued October 2002, effective 22 Aug 02 until Present, 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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