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NAVY | DRB | 2003_Navy | ND03-01136
Original file (ND03-01136.rtf) Auto-classification: Denied


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

ex-HTFA, USN
Docket No. ND03-01136

Applicant’s Request
The application for discharge review was received on 20030618. The Applicant requests the characterization of service received at the time of discharge be changed to 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 20040430. 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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. At the time of my discharge, I was young and having troubles coping with being away from home in japan. My service prior to my mental lapse was exemplary and the outlook for my navy career was bright I fully regret all my conduct that led to my other than honorable discharge. I made a huge error in judgement the time and have missed the navy ever since. I have recently regretted even more so, with the ongoing events in Iraq and the war on terrorism. I have wanted to return to serve for my country, but the type of discharge I have would prevent me from doing so. I am not sure that by receiving an upgrade of discharge would allow me to re-enlist but I figured that I needed to do everything, before I gave up the possibility of returning to the navy and finishing my career honorably, as I should have in the first place.”
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)     900125 - 900819  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 900820               Date of Discharge: 931022

 Length of Service (years, months, days):

         Active: 03 02 03
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 54

 Highest Rate: HTFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (4)    Behavior: 3.45 (4)                OTA: 3.55

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, SASM, SSDR, 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 3630600.

 Chronological Listing of Significant Service Events :

920914:  NJP for violation of UCMJ, Article 92: Dereliction of duty by failing to properly complete a PMS maintenance action.
         Award: Forfeiture of $440.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-2(suspended for 6 months). No indication of appeal in the record.

921012:  Previously suspended forfeiture of $440.00 pay per month for 2 months and reduction in rate to E-2 at CO’s NJP of 920914 is hereby vacated due to member’s continued misconduct.

921012:  NJP for violation of UCMJ, Article 92: Disobeyed a lawful order from the Commanding Officer by missing 5 restricted men’s musters.
         Award: Confinement on Bread & Water for 3 days. No indication of appeal in the record.

930429:  NJP for violation of UCMJ, Article 121: Steal one double compact disc set, of a value of about $24.95, the property of the Navy Exchange, violation of UCMJ Article 123a: Draw checks in the amount of $1194.05 without sufficient funds.
Award: Restriction for 60 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.
930825:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
930901:  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.
930910:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930916:  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 19931022 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 separation from home was a contributing factor, it does not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service. His service record is marred by award of nonjudicial punishment (NJP) on three separate occasions for disobeying a lawful order, dereliction of duty, and larceny . The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls short of that required for a general (under honorable) characterization of service. Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing enlistment 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.

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 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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