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NAVY | DRB | 2003_Navy | ND03-01067
Original file (ND03-01067.rtf) Auto-classification: Denied


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

, ex-AOAR USN
Docket No. ND03-01067

Applicant’s Request
The application for discharge review was received on 20030609. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions. 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 20040429. 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 enlisted in the Navy with the best intentions with 4 yrs of college.

Becoming a Navy Seal was once a dream of mine, and I knew from what the Navy officer recruiter told me that my fitness level was not good enough.

After having enlisted under the Navy Seal Chalenge program and passin the boot-camp physical fitness requirements, and then being dropped from that program in “A” School because I drank alcohol while I was still in phase I Liberty even though I had met all the requirements to be in Phase II.

After bein sent to the fleet to serve on Board U SS Nimitz (CVN-68) during it half-life overhaul in the ship yards of Newport News, VA for almost 2 years I still had hope of becoming a SEAL Unfortunately I was sent to captains mast to receive NON-Judicial punishment two more times toward the end of my enlistment resulting in being discharged with an Administrative separation under other than honorable conditions.

I cleaned restrooms, barracks, elevator shafts, flight deck hatches, machinery rooms, drainage run off ditches for 3 yrs 5 mos 21 days, and now I can’t even get hired by 7-eleven to work the night shift. All I need is an upgrade to general discharge under honorable conditions so that I’ll have a chance at a descent job someday.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Service Record (3 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990524 - 990527  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 990528               Date of Discharge: 021118

 Length of Service (years, months, days):

         Active: 03 05 21
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 96

 Highest Rate: AOAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.00 (0)    Behavior: 1.00 (0)                OTA: 1 .00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 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 :

990928:  NJP for violation of UCMJ, Article 92: Disobeying a lawful order.
         Award: Forfeiture of $479 per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.

990928:  Retention Warning: Advised of deficiency (Disobeying a lawful order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

991130:  NJP for violation of UCMJ, Article 86 (2) Specifications: UA, violation of UCMJ Article 92 (3) Specifications: Disobeying a lawful order, violation of UCMJ, Article 134: False pass offense.
         Award: Restriction and extra duty for 30 days, reduction to E-1. No indication of appeal in the record.

991130:  Retention Warning: Advised of deficiency (UA, disobeying a lawful order, false pass offense), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020131:  NJP for violation of UCMJ, Article 92: Dereliction of duty, violation of UCMJ, Article 121: Wrongful appropriation.
         Award: Forfeiture of $649 per month for 2 months Restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

020131:  Retention Warning: Advised of deficiency (Dereliction of duty; wrongful appropriation), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

021003:  NJP for violation of UCMJ, Article 86: UA, violation of UCMJ, Article 89: Disrespect toward a superior commissioned officer, violation of UCMJ, Article 91, Disrespect toward a chief petty officer and first class petty officer, violation of UCMJ, Article 121: Wrongful appropriation of a government vehicle.
         Award: Forfeiture of $400 per month for 2 months Restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
021015:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct.
021015:          Applicant advised of his 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.
021021:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to pattern of misconduct.

021025:  Commander, Cruiser-Destroyer Group Five 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 20021118 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities 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. 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 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), 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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