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NAVY | DRB | 2004_Navy | ND04-00148
Original file (ND04-00148.rtf) Auto-classification: Denied


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


ex-YNSA(SW), USNR(TAR)
Docket No. ND04-00148

Applicant’s Request
The application for discharge review was received on 20031030. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “HONORABLE.” The Applicant requests a documentary record discharge review. The Applicant designated the Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040728. 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 and reason for the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/COMPLETION OF REQUIRED ACTIVE SERVICE, authority: NAVMILPERSMAN, Article 1910-104.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated

 Applicant’s issues, as stated on the application:
“1. Completed 4 years of uninterrupted service with the U.S. Navy.
2. Received an injury while performing community service in South America for which I have never applied for disability compensation.
3. I was told that, in no way, a General (Under Honorable Conditions) discharge would affect the use of my Montgomery G.I. Bill”

 Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):
“Dear Chairperson:After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General Under Honorable Condition to that of Honorable.The FSM served on active service from August 22, 1997 to August 21, 2001 at which time he was discharged due to the completion of required active service. The FSM contends the current discharge is improper because he was improperly informed that the present discharge would not effect his use of the Montgomery GI Bill, after completing four years of active service. Additionally stating that he received an injury while on active duty in South America, performing community service.A review of the record reflect s the FSM received NJP for an offense in 1998 and again two times in 1999, with the statement that FSM Marshall, with continued experience and adherence to military regulations become an excellent sailor. Then two years later he is discharged with a General instead of an Honorable discharge. This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).In continuance, the FSM served his punishment, rehabilitated himself and served honorably after these offenses as he did before the occurrence. Since the bulk of his serve is honorable we request the applicant’s discharge be upgraded as reflected on the application.As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.Consideration to equitable relief would be proper due to the reason the FSM submits as he would like to make a better life for his family, and that should not suffer for his past mistakes.We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.Respectfully, ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s letter to the Board dtd Aug 20, 2003
 Copy of DD Form 214 (Member-1 copy)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
          Active: None

 Period of Service Under Review :
Date of Enlistment: 961029               Date of Discharge: 010821

 Length of Service (years, months, days):
         Active: 04 00 00
          Inactive: 00 09 23
Age at Entry: 17 (Parent Consent)

 Years Contracted: 8
Education Level: 12                        AFQT: 71

 Highest Rate: YNSN
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.33 (3)    Behavior: 2.0 (3)                 OTA: 3.11
Military Decorations: None

 Unit/Campaign/Service Awards: Designated Enlisted SWS, Pistol Marksmanship Medal
Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/COMPLETION OF REQUIRED ACTIVE SERVICE, authority: NAVMILPERSMAN, Article 1910-104.

 Chronological Listing of Significant Service Events :

970822:  Commenced 48 months of active duty with the TAR Enlistment Program.
980130:  NJP for violation of UCMJ, Article 92: Failure to obey a written regulation.
         Award: Forfeiture of $250 per month for 1 month, restriction and extra duty for 15 days. No indication of appeal in the record.
980729:  NJP for violation of UCMJ, Article 92: Failure to obey other lawful order.
         Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 30 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.
980729:  Retention Warning: Advised of deficiency (violation of UCMJ Article 92 – failure to obey order or regulation in that, on or about 2000, 24 Jul 98, fail to obey a lawful general regulation, to wit: USSGEORGEPHILIPNOTE 11103 dated 15 June 1998 by having a bottle of alcohol in the BPO’s office while talking on the phone), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990126:  Punishment of reduction from YNSA to YNSR suspended at NJP on 98JUL29, vacated this date due to additional misconduct committed.
990126:  NJP for violation of UCMJ, Article 130: Housebreaking.
         Award: Oral reprimand, restriction and extra duty for 10 days. No indication of appeal in the record.
990126:  Retention Warning: Advised of deficiency (violation of UCMJ Article 130 – housebreaking, in that on or about 0445, 17 Jan 99, you unlawfully entered the CPO’s mess berthing area, with intent to commit a criminal offense, to wit: larceny, by unlawfully opening the locker belonging to GSMC(SW) L_, and when approached by BMCS(SW) C_, you fled the scene by running out of the space), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.   

990326:  NJP for violation of UCMJ, Article 92: Failure to obey lawful general order; violation of UCMJ Article 112: Drunk on duty.
         Award: Forfeiture of $250 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
990326:  Retention Warning: Advised of deficiency [found guilty of violating UCMJ Article 92 (2 specifications) and UCMJ Article 112 (drunk on duty)], advised of loss of security clearance and transfer to Repair Division, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000112:  NJP for violation of UCMJ, Article 111: Drunken or reckless operation of vehicle, aircraft, or vessel.
         Award: Forfeiture of ½ months pay per month for 2 months, restriction for 60 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.

 000419:  NJP for violation of UCMJ, Article 86: Absence without leave (2 specifications).
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.

 000419:  Retention Warning: Advised of deficiency (violation of UCMJ Article 86 absence without leave (2 specs) in that you while on active duty, did, on or about 11 Apr 2000, without authority absent yourself from medical screening and did on or about 12 Apr 2000, without authority absent yourself form Fleet Training Center, NS, San Diego, CA), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000419:  Retention Warning: Advised of deficiency (violation of UCMJ Article 111 – drunken or reckless operation of vehicle, aircraft or vessel – in that YNSN C- A. M_, USNR(TAR) while on active duty, on or about 0204, 06Jan 2001, in the area of Building 29 (near the Officer of the Day parking lot) physically control a vehicle, to wit: a passenger care, while impaired by alcohol), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010726:  Vacated previous reduction to E-2.
010726:  NJP for violation of UCMJ, Article 86: On or about 0730, 22JUN01, without authority, absent himself from his organization to wit, NMCSO, and did remain so absent until about 0730, 25JUN01.
         Award: Forfeiture of $521 per month for 1 month, restriction and extra duty for 30 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.
010821:  Applicant discharged with a General (Under Honorable Conditions) by reason of completion of required active service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010821 with a general (under honorable conditions) due to completion of required active duty. (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).
Issues 1-3: In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of general (under honorable conditions) is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on seven separate occasions thus substantiating the misconduct . The Applicant’s summary of service clearly reflects the Applicant ’ s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to honorable would be inappropriate. Relief denied.
The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB). There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.

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. E vidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.

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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 32, effective
 8 May 2001 until 14 October 2001, Article 1910-104 (previously 3620150), Separation by Reason of Expiration of Active Obligated Service (EAOS) .

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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