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NAVY | DRB | 2003_Navy | ND03-01030
Original file (ND03-01030.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND03-01030

Applicant’s Request
The application for discharge review was received on 20030602. 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 listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040415. 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)/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. “My discharge was unfair because it was based on one isolated incident. I was accused of possessing some non significant items from work. Because I ‘ head seen other coworker had different things that our work didn’t use, they had them in their homes of residence, I though it’s OK to take a chair that wasn’t in use at work, or some office writing tools, small things like that and I had them in base housing. Yes, I admit I should have got permission to use anything no matter how small it was. But I didn’t pay attention to that principle. But, because I was scared as I did not have any advise assistance, I let the fate played in. I feel, I should have given a 2 nd chance to continue to serve or at least put in probation. I feel I am being harshly punished for a mistake that I could have corrected then and can correct anytime if I am given the chance.
Two requests I have to change to Honorable and 2 nd to be able to enlist again and that’s change my Reenty Code. Especially that my discharge nature is blocking me from reaching my goals that I have set out as part of U.S.A. Specifically, I’ve always wanted to utilize my diverse background to serve the U.S.A. and particularity the foreign languages skills that I have (Arabic background, French as well Especially now and perhaps in the few decades to come, there’s and will be a need for people of my background who are willing to dedicate their lives to serve the U.S.A. and express their gratitude's to this great nation that has given a lot of people an opportunity be born again and live a meaningful life. I am 37 years old now, and I’m back to school/college to advance my education so that I can be a better & useful asset to the U.S.A. that gave me priceless things that my own mother laud couldn’t give.
And that’s why I feel I owe a great deal to the U.S.A. and to me I’d like to be able to be accepted back to the U.S. Service because it would help me clear my conscicuce and feel forgiven if ever what happened to me was solely because I didn’t do my part. To change my Reentry Code & my discharge would give me that priceless opportunity & 2 nd chance that I know I will use wisely and productively to make up for possible past mistakes and avoid the smallest ones in Future. Thank you Sincerely K_ A_ (Applicant)”

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

 2. “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General Under Honorable Conditions to an Honorable Discharge.

The FSM served on active service from December 10. 1998 to October 15, 1999 at which time he was discharged due to Misconduct - Commission of a Serious Offense.

The FSM contends the current discharge is improper because he was following the example set forth by his fellow soldiers, and although he accepts responsibility for his actions, he seeks equitable relief for the current level of discharge.

This creates a need for review of the application of the standard, for the Board to determine that the Applicant 's discharge was improper. The Board will determine which reason for discharge should have been assigned has based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVINST 5420.174 (c). Par. (f)(1).

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board's discretionay authority, under SECNAVINST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Character reference, dated May 5, 2003
Character reference, dated May 20, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     981121 - 981209  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 981210               Date of Discharge: 991015

 Length of Service (years, months, days):

         Active: 00 10 06
         Inactive: None

 Age at Entry: 32                          Years Contracted: 4

 Education Level: 12                        AFQT: 42

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 1.00 (1)    Behavior: 1.00 (1)                OTA: 1.20

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

 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 :

990914:  NJP for violation of UCMJ, Article 121: Larceny between March 1999 and August 1999, to wit: steal property of the U.S. Government of a value of $750.
         Award: Forfeiture of $532.90 per month for 2 months, restriction and extra duty for 45 days, reduction to AR. No indication of appeal in the record.
990914:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.
990914:  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.
991019:  Commanding Officer recommended discharge general (under 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 19991015 general (under 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: In the Applicant’s case, the Board discovered no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor. The Applicant’s service record is marred by award of nonjudicial punishment . The Applicant’s summary of service clearly reflects the Applicant ’ s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to honorable would be inappropriate. Relief denied.

Issue 2: 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. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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 or any other evidence related to his discharge 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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