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NAVY | DRB | 2003_Navy | ND03-01222

Original file (ND03-01222.rtf) Auto-classification: Denied

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

ex-MSSR, USN
Docket No. ND03-01222

Applicant’s Request

The application for discharge review was received on 20030714. 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 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 20040514. 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. “I wish the Board to look at my files and realize I was young and had to grow up I was a good soldier and I want to return to the military. I am asking the Board to be kind and give me a second chance.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Letter from Applicant, undated
Letter from Applicant, undated
Letter for reinstatement from the Applicant
Paternity test, dated June 15, 1998
Paternity test, dated June 15, 1998
Grade history, dated March 3, 2004
Letter from Registrar, Crown College, dated December 1, 2003
Character reference from Applicant’s mother, dated April 6, 2004
Character reference from Dean of Students, dated April 8, 2004
Letter of recommendation, undated
Letter of recommendation, dated April 19, 2004

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     940113 - 940125 COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 940126               Date of Discharge: 951128

Length of Service (years, months, days):

         Active: 01 10 03         Does not exclude lost time
         Inactive: None

Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 35

Highest Rate: MSSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 4.00 (1)    Behavior: 4.00 (0)                OTA: 3.80

Military Decorations: None

Unit/Campaign/Service Awards: NER, SSDR, 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 :

940127: You are being retained in the Naval service, despite your fraudulent induction as evidenced by your failure to disclose your pre-service civil involvement and/or drug abuse. This decision is based on the information you provided the Recruit Quality Assurance Interviewer and if it is found that additional information has not been disclosed, this waiver is void and you could be subject to other judicial or administrative proceedings, ie., disorderly conduct, 6/93, Columbus, GA paid $100 fine, disorderly conduct, 10/93, Columbus, GA paid $100 fine.

950406: NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: Unauthorized absence from 0800, 950320 to 1300, 950323 (3 days/apprehended).
Specification 2: Unauthorized absence from 970324 t 970327 (3 days/surrendered).          Award: Restriction and extra duty for 45 days, reduction to MSSR. Reduction to suspended for 6 months. No indication of appeal in the record.

950406: Retention Warning: Advised of deficiency (Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950620: Special Court Martial:
         Charge I: violation of the UCMJ, Article 91:
         Specification: Disrespect to petty officer.
         Charge II: violation of the UCMJ, Article 117:
         Specification: Provoking words.
         Charge III: violation of the UCMJ, Article 128:
         Specification: Simple assault.
         Charge IV: violation of the UCMJ, Article 134:
         Specification: Communicate threat.
         Findings: to Charge I, II, III and IV and specification thereunder, guilty.
         Sentence: Confinement for 100 days, forfeiture of $200 per month for 2 months, reduction to MSSR.
         CA 950925: Sentence approved and ordered executed, except for confinement in excess of 70 days is suspended for 6 months.

950622: Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

950622: Applicant advised of rights and having consulted 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.

951003: Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

951023: 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 the commission of a serious offense.

951101: Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

951107: 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 19951128 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).

The Applicant contends his disciplinary problems were the result of his youth and being immature. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as 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. The Applicant’s service was marred by the award of nonjudicial punishment (NJP) and a Special Court-Martial for violations of the Uniform Code of Military Justice (UCMJ). The Applicant’s misconduct included violations of Articles 86, 91, 117, 128 and 134 of the UCMJ. The Applicant’s performance and conduct evaluations, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief is therefore denied.

It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

Issue 2. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

The following is provided for the edification of the Applicant. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.

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 9, effective
22 Jul 94 until 02 Oct 96, 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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NAVY | DRB | 2003_Navy | ND03-01222

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