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NAVY | DRB | 2004_Navy | ND04-00211
Original file (ND04-00211.rtf) Auto-classification: Denied


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


ex-RM3, USN
Docket No. ND04-00211

Applicant’s Request
The application for discharge review was received on 20031117. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 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 20040728. After a thorough review of the available 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: GENERAL (UNDER 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. “Dear DRB:
 The following issues are the reasons I believe my discharge should be upgraded to Honorable. If you disagree please explain in detail why you disagree. The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because I am submitting.
 My record of promotions showed I was generally a good service member.
 I had a prior Honorable Discharge.
I had combat service.
 My ability to serve was impaired by the following reasons:
a. My youth and immaturity
b. Because of marital and family and child care problems
c. S_ S_, shoplifting, and major car accident involving, S_ and daughter, M_. She couldn’t do anything for herself physically do to accident. Instead of Dissolution in I had to stay and at least see to her getting her Associate degree in Medical and full rehabe session funded by my benefits from you. She fully was able to alk out the bed and full recovery. While I was in jailed she took the whole house and the car. But soon she gave at least the car back.
d. Personnel problems
Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge. I received awards, decorations, and recommendation.”

 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                     930909 - 931031  COG
          Active: USNR                       931101 - 961030  COG
Period of Service Under Review :
Date of Enlistment: 961031               Date of Discharge: 990406

 Length of Service (years, months, days):
         Active: 02 07 07
          Inactive: None
Age at Entry: 22                          Years Contracted: 6

Education Level: 12                        AFQT: 35
Highest Rate: RM3

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.00 (2)    Behavior: 3.50 (2)                OTA: 3.39

 Military Decorations: None
Unit/Campaign/Service Awards: JMUA, MUC, GCM, NDSM, AFEM, SASM W/BRONZE STAR, SSDR
Days of Unauthorized Absence: 4

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).
Chronological Listing of Significant Service Events :

961031   Applicant reenlisted for 6 years.
980827:  Applicant was detained at the San Diego Police department, San Diego, CA at 1710, on 980827
980828:  Applicant went on Unauthorized absence at 0730, 980828.
980901:  Applicant returned from Unauthorized absence at 0730, on 980901. (4 days)
980916:  NJP for violation of UCMJ, Article 86 (3 Specs): Unauthorized from unit/appointed place of duty, violation of UCMJ Article 91 (2 Specs) Disrespectful in language to a PO1 and CPO, violation of UCMJ Article 128: (1 Specs) Wrongfully strike another, violation of UCMJ Article 134 (2 Specs) Disorderly conduct.
         Award: Forfeiture of $734.00 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
980921:  Warning: [Extracted from Commanding Officer’s letter dated 990528.] No further information found in service record.
990212:  NJP for violation of UCMJ, Article 92: derelict in the performance of his duty; violation of UCMJ, Article 107: with intent to deceive, sign an official document; violation of UCMJ, Article 134: wrongfully have sexual intercourse with a person not his wife.
          Award: Restriction and extra duty for 30 days.
          [Extracted from Commanding Officer’s letter dated 990528.]

990528:  Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.
Parts of Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990406 general (under honorable conditions) for misconduct due to commission of a serious offense (A & B). In the absence of a complete discharge package, the Board presumed regularity in the conduct of governmental affairs (C) and, after a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, found that the discharge was proper and equitable (D and E).
Issue 1. The Applicant contends that he was “generally a good service member,” and “had a prior honorable discharge” and is therefore entitled to an upgrade. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A General discharge 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 two nonjudicial punishment proceedings for 10 violations of the UCMJ to include violations of Article 86, unauthorized absence, Article 91 for insubordination, Article 92, failure to obey an order, Article 128 for wrongfully striking another and Article 134 for disorderly conduct. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends that his ability to serve in the Navy can be attributed to his “youth,” “marital and family and child care programs,” and “personal problems.” While he may feel that his personal problems and immaturity were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

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 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE .
B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 91, insubordinate conduct, Article 92 failure to obey a lawful order or Article 107, false official statements if adjudged at a Special or General Court Martial
C. 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.

D. 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.

 E. 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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