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NAVY | DRB | 2003_Navy | ND03-01034
Original file (ND03-01034.rtf) Auto-classification: Denied


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

, ex-ENFR, USN
Docket No. ND03-01034

Applicant’s Request
The application for discharge review was received on 20030530. 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 20040608. 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 3630600.

 The NDRB did note an administrative error(s) on the original DD Form 214. Block 29, Dates of Time Lost During This Period, should read: “TL: 930216-930222” vice “TL: 930216-930221 .” The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.





PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “My discharge was inequitable because it was based on one isolated incident in 14 months of service with no other adverse action. I served 6 month in the brigade before I was sent home with an OTH. I have evaluations from boot camp; schooling, and brig showing that I turned around to a 4-0 sailor. If I showed improvement why was I discharged other than honorable. I did the crime I served my time I do not need an OTH on my record.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Certificate of appointment, dated November 6, 1992 (2)
Certificate of completion, dated September 15, 1992 (2)
Certificate of completion, dated January 22, 1993 (2)
Certificate of completion, dated November 6, 1992 (2)
Letter from Applicant, dated January 24, 2004
Letter from Applicant, dated March 16, 2004
Letter to Applicant from National Personnel Records Center, dated February 21, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     911209 - 920317  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 920318               Date of Discharge: 931130

 Length of Service (years, months, days):

         Active: 01 08 07
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 63

 Highest Rate: EN3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (2)    Behavior: 2.80 (2)                OTA: 2.80

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 6

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

920421:  You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service involvement: Speeding 9/91, Paid $243.00 fine. However, any further deficiencies in performance or conduct may result in processing for administrative separation.

930511:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 86:
         Specification 1: Unauthorized absence 0515, 930216 - 0700, 930222 (6 days/surrendered).
         Charge II: violation of the UCMJ, Article 89 (2 specs):
         Specification 1: Disrespect toward a superior commissioned officer on 930119.
         Specification 2: Disrespect toward a superior commissioned officer on 930119.
         Charge III: violation of the UCMJ, Article 91 (5 specs)
         Specification 1: Disrespect toward a superior SCPO on 930119.
         Specification 2: Disrespect toward a PO1 on 930411.
         Specification 3: Disrespect toward a PO1 on 930411.
         Specification 4: Assault a superior PO1 by offering to hit her on 930411.
         Specification 5: Disobey a lawful order on 930411.
         Findings: to Charge I, II, and III, and specifications thereunder, guilty.
         Sentence: CHL for 90 days, forfeiture of $500 per month for 2 months, reduction to ENFN.
         CA 930607: Sentence approved and ordered executed.

930901:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 121:
         Specification: Steal two Motorola HT90 radios, military property, of a value of $400.00, the property of NAS Glenview, IL.
         Charge II: violation of the UCMJ, Article 91:
         Specification: Willfully disobey a lawful order on 930820.
         Findings: to Charge I and II and specifications thereunder, guilty.
         Sentence: CHL for 30 days, forfeiture of $500 per month for 2 months, reduction to ENFR.
         CA 930921: Sentence approved and ordered executed.

930923:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
930923:  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.
930923:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

931014:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

931007:  Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), Applicant’s discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.
931008:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19931130 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. The Applicant’s discharge was based on several minor disciplinary infractions, not one incident. A characterization of service of other than honorable 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. T he Applicant’s service was marred by convictions at two Special Court-martials . The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable is inappropriate. It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges. In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. 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 or any other evidence relating 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 5, effective
05 Mar 93 until 21 Jul 94, 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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