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NAVY | DRB | 2004_Navy | ND04-00120
Original file (ND04-00120.rtf) Auto-classification: Denied


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

ex-ABFAR, USN
Docket No. ND04-00120

Applicant’s Request
The application for discharge review was received on 20031023. 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040715. 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. I was discharged on an OTH because I went U.A. in June of 92 I was married at the time and my wife who is now deceased miscarried when I was out to sea for 2wks and I felt like I needed to be home with her but I couldn't and it cost me some emotional problems. I know what I did was wrong and against the military regulations and I'm very sorry for what I did. The military gave me a career and a job of a lifetime and I messed up. I loved my country and if I could I would fight again for her I'm very blessed to be born free in a country of freedom. I'm asking for an upgrade because I did participate in the Gulf war in 1991 to help protect our nation. I served 2 yrs of my 4 yr enlistment and I feel like I could use this upgrade so I can get my veterans benefits. I also would like this upgrade because I feel I did the best for my country in time of need and war. Please consider this application for this upgrade. And thank you for your time and consideration with this application. At the time of my Captains Mast hearing I was going to receive 45/45 45 days in jail and 45 days no pay. But then they decided to let me out of the service. I wish I had never taken that agreement because that mistake has cost me a lot of aggravation and pain over the years.”

 Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     891216 - 900812  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 900813               Date of Discharge: 920821

 Length of Service (years, months, days):

         Active: 02 00 09
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 31

 Highest Rate: ABFAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.20 (2)    Behavior: 2.00 (2)                OTA : 2.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM, SSDR, Flag Ltr Commendation, JMUA

 Days of Unauthorized Absence: 17

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

910328:  Retention Warning: Advised of deficiency. You were awarded Captain's Mast on 910328 for violation of UCMJ, Article 86 (2 Specifications): UA from USS FORRESTAL (CV-59) from 910225 until 910306 (9 days), and UA from USS FORRESTAL (CV-59) from 910319 until 910321 (3 days). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910328:  NJP for violation of UCMJ, Article 86 (2 Specifications): Specification 1: UA from unit from 910225-910306 (9 days/S); Specification 2: UA from unit 910319-910322 (3 days/S).
         Award: 3 days Bread & Water, forfeiture of $376.00 pay per month for 1 month. No indication of appeal in the record.
         
910713:  NJP for violation of UCMJ, Article 92: Wrongfully using racial slur on 910711.
         Award: Forfeiture of $100.00 pay per month for 1 month (suspended for 3 months). No indication of appeal in the record.

920729:  NJP for violation of UCMJ, Article 86 (2 Specifications): Specification 1: UA from unit 920611-920614 (4 days/S); Specification 2: UA from unit from 2200, 920721 until 0500, 920723 (1 day); violation of UCMJ, Article 87: Missing ship's movement on or about 920722.
         Award: Forfeiture of $200.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
920730:  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 as evidenced by all punishments under the UCMJ in your current enlistment.
920730:  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.
920804:  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 a pattern of misconduct as evidenced by all punishments under the UCMJ during his current enlistment.

920820:  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 19920821 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. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions. 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. The positive aspects of the Applicant’s record do not mitigate his misconduct sufficient to warrant an upgrade to his characterization of service. Relief denied.

The Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Additionally, 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. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge. 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), effective 15 Aug 91 until
04 Mar 93, 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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