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NAVY | DRB | 2004_Navy | ND04-00253
Original file (ND04-00253.rtf) Auto-classification: Denied


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

ex-ATAN, USN
Docket No. ND04-00253

Applicant’s Request
The application for discharge review was received on 20031121. 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. Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040921. 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: 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. “While going through my discharge my JAG attorney and the attorney representing the Navy assured me that since my discharge was for under age drinking it would be easy to upgrade my discharge. However, after my separation I have found that it was not as simple as promised and I would have rather gone to court-martial that have this discharge haunting me for the rest of my life.

Since the time of my discharge I have completed my college education while working full time. I have tried to lead an exceptional life in hopes of providing evidence of the changes I have made and the steps I have taken to better myself. I hope that a poor decision made during adolescence will not continue to affect me for the rest of my life. I do take full responsibility for my actions, however, if I had known the effects this would have on my family and my future I would never have agreed with the recommendation of my attorney and accepted a discharge.”

Additional issues submitted by Applicant’s representative (AMERICAN LEGION):

 2. “ Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
_______________________________________________________________________
In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition.

The service record is incomplete. In particular, the discharge package is missing. Review of the available records reflect that this former member earned an Expert M-16 Ribbon. On 980327, he was awarded NJP for VUCMJ, Art. 92. He was discharged General (Under Honorable Conditions) due to the misconduct as authorized by NAVMILPERSMAN, Art. 1910-140.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because he was ill advised by his attorney to accept his separation and because of his post-service conduct. He has submitted 3 pages of additional documentation attesting to his hard work, educational pursuits and community involvement for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.”
Documentation
In addition to the service record, NO DISCHARGE PACKAGE AVAILABLE, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant, dated December 26, 2003
Reference Letter from Father, dated December 29, 2003
Reference Letter from Mother, dated December 30, 2003
Reference Letter from S_ S_, PhD, Associate Professor University of Cincinnati

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     960731 - 961028  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 961029               Date of Discharge: 981106

 Length of Service (years, months, days):

         Active: 02 00 08
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 66

 Highest Rate: ATAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*        Behavior: NMA             OTA: NMA

Military Decorations: None

 Unit/Campaign/Service Awards: M-16 Expert

 Days of Unauthorized Absence: None

*No Marks made available for review

 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 :

980327:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
         Award: Restriction to NAS Whidbey Island for 45 days, extra duty for 45 days, reduction to next inferior pay grade (suspended for 6 months). No indication of appeal in the record.

980521:  Applicant referred to Alcohol Treatment program for the second time in one month for alcohol related incidents. One month ago patient had DUI reduced to Negligent Driving. On April 25, 1998 was stopped on base for minor consumption, which was dismissed. Patient processed by screening counselor and prevent was recommended with first offense which he has yet to attend. Diagnosed with VG2.89- Phase of Life Problem, Alcohol Problem/incident which did not meet criteria for abuse/dependency. Appeared motivated for treatment.

980918:  Applicant referred to Alcohol Treatment program by VQ1 NAS Whidbey Island concerning being apprehended. Had a breathalyzer .103 for ETOH. Applicant was of legal drinking age. Incident occurred on 980912. Diagnosis: Alcohol Abuse.

981106:  Applicant's discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense per MILPERSMAN 1910-140.

NO DISCHARGE PACKAGE AVAILABLE

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981106 with a general (under honorable conditions) for misconduct due to commission of a serious offense (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issues 1-2. The Applicant’s discharge characterization accurately reflects his service to his country. The Applicant’s service was marred by award of nonjudicial punishment (NJP) for violation of Article 92 of the UCMJ, and a civil conviction. Normally, to permit relief, a procedural impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. The Applicant’s claim that he received poor advice from his military attorney is not supported by evidence in the record. Accordingly, the presumption of regularity applies. 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 denied.

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 has not provided sufficient documentation for the Board to consider.

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 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. 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.

C. 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.

D. 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.

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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