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NAVY | DRB | 2003_Navy | ND03-01001
Original file (ND03-01001.rtf) Auto-classification: Denied


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

ex-FCSN, USN
Docket No. ND03-01001

Applicant’s Request
The application for discharge review was received on 20030516. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record 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 20040423. 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: GENERAL UNDER HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. Respectfully request to have my discharge changed to Honorable, for purposes of VA benefits. So I may use the G.I. Bill to go to college an complete a degree, to better provide for my family.

Sirs, I am truly sorry, that at time I did not totally adhere to guidelines of honor, courage, and commitment, and all that applies. But the stress of living overseas, and being away from homeport a major part of the year, while being married with a child was a lifestyle that almost resulted in divorce. Since the military, I have tried to provide for my family the best that I can’ but in an economy that is rapidly down sizing, I fear that if I do not acquire a degree in college soon. Then I will not be able to provide for then fully.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     960124 - 960520  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 960521               Date of Discharge: 001010

 Length of Service (years, months, days):

         Active: 04 04 20
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 74

 Highest Rate: FC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (4)    Behavior: 2.25 (4)                OTA: 2.59

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, NUC, SSDR(2), Pistol Sharpshooter

 Days of Unauthorized Absence: None

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

GENERAL UNDER HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

970708:  Retention Warning: Advised of deficiency (Violation UCMJ, Article 107 (False Statement) and 86 (Unauthorized absence)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970709:  NJP for violation of UCMJ, Article 107: False official statement, violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of $235.00 pay per month for 1 month, extra duty for 14 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.

000428:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward a Petty Officer.
         Award: Restriction and extra duty for 30 days, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.
000907:  NJP for violation of UCMJ, Article 128: (4 Specifications), Specification 1: Did on or about 2330, 000727, at 580-A, Negishi Avenue, Yokohama, Japan, unlawfully strike E___ L___, his wife, on her face with his hand numerous times with his fist, Specification 2: Did on or about 2330, 000727, at 580-A, Negishi Avenue, Yokohama, Japan, unlawfully push E___ L___, his wife, into the wall, Specification 3: Did on or about 2330, 000727, at 580-A, Negishi Avenue, Yokohama, Japan, unlawfully push E___ L___, his wife onto the couch and grabbed her by the throat, Specification 4: Did on or about 2335, 000830, at 580-A, Negishi Avenue, Yokohama, Japan, unlawfully push E___ L___, his wife, and kicking her left leg, violation of UCMJ, Article 92: Did on or about 000803, violate a lawful order by the Commanding Officer, USS OBRIEN, to wit: Military Protective Order issued on 000728, by wrongfully being in contact with his wife, E__ L___.
Award: Restriction and extra duty for 30 days, reduction in rate suspension vacated this date. (. No indication of appeal in the record.
000911:  Applicant notified of intended recommendation for discharge with a characterization of general under honorable conditions by reason of commission of a serious offense and misconduct due to a pattern of misconduct.
000911:  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

UNDATED:         Commanding Officer advise CNPC of applicant’s discharge with a characterization of general under honorable conditions by reason of commission of a serious offense and misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20001010 with a characterization of general under honorable conditions for misconduct due to a pattern of misconduct (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 personal problems 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 nonjudicial punishment (NJP) on three separate occasions. Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing educational benefits as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.

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, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.

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 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN 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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