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NAVY | DRB | 2003_Navy | ND03-00917
Original file (ND03-00917.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND03-00917

Applicant’s Request
The application for discharge review was received on 20030430. 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040401. 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. First of all, thanks for taking the time to review my case. I am now 31 years of age, married with a 15 month old son. I made a bad decision to take an OTH in my youth. My decision making skills at 19 yrs were somewhat inadequate. Actually I was ignorant. I love my country and would gladly die to protect our freedom. I have had this monkey on my back for 11 years now, and I’m ashamed. I did not hurt anyone but myself for making this choice. I gone out drinking with other shipmates and that got way out of hand. I am a Christian and on active member of my church now. I would like to be able to serve my country if called upon but I can’t with my discharge. If needed I would volunteer if needed. I pray you would see your way clear to changing my discharge to honorably, so if I am needed I could serve.”
Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     900802 - 910107  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 910108               Date of Discharge: 920529

 Length of Service (years, months, days):

         Active: 01 04 22
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 42

 Highest Rate: RMSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (1)    Behavior: 3.40 (2)                OTA : 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: NDM, BATTLE”E” (w/silver “E”)

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

910226:  You are being retained in the naval service, despite of your defective enlistment and induction due to fraudulent entry into the naval service as evidenced by your failure to disclose your pre-service involvement with civil authorities consisting of the following: Shoplifting in 1985 in Pineilas Park, FL; awarded 8 hours community service.

910226:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 83, fraudulent enlistment, non-disclosure of civil involvement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910226:  NJP for violation of UCMJ, Article 83: On or about 0900, 910108, by means of knowingly false representation that he had only three civil charges when in fact he had four civil charges, procure himself to enlist, as a SR, into the US Navy and did thereafter, on board RTC, San Diego, CA receive pay and allowance under the enlistment so procured.
         Award: Forfeiture of $200. 00 pay per month for 1 month. No indication of appeal in the record.

920225:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 86, Unauthorized absence, violation of UCMJ, Article 91, Insubordinate conduct/disrespect), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920310:  Absent from his appointed place of duty 0700-0710, 920310.

920311:  Absent from his appointed place of duty 0700, 920311 until 0230, 920312.

920323:  NJP for violation of UCMJ, Article 92: Failure to obey an order or regulation, violation of UCMJ Article 134: Drunkeness.
         Award: 3 days Bread & Water. No indication of appeal in the record.
920323:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
920428:  Applicant advised of his rights, elected to waive all rights.
920430:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920525:  BUPERS 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 19920529 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: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While he may feel that his youth and immaturity were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service. His service record is marred by award of non-judicial punishment (NJP) on two separate occasions thus substantiating the misconduct . Relief denied.

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, an alcohol-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted. The Applicant has not submitted any documentation to mitigate his misconduct while on active duty. Relief denied.

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), effective 15 Aug 91 until
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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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