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NAVY | DRB | 2004_Navy | ND04-00362
Original file (ND04-00362.rtf) Auto-classification: Denied


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

ex-HTFN, USN
Docket No. ND04-00362

Applicant’s Request
The application for discharge review was received on 20031218. 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 review was conducted in Washington, D.C. on 20040910. 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. “To whom it may concern,

I believe the discharged I received from the United States Navy, on January 10, 2003, was inequitable because it was based on one isolated incident in 32 months of honorable and diligent service with no other adverse action. I am requesting that my service record be reviewed once more, and upgrade my current discharge from a General Under Honorable Conditions Discharge to an Honorable Discharge. I would also like to point out that I was completely responsible for my actions, and suffered greatly from the Captain’s Mast results, and the fact, that I never put on the rank of Petty Officer 2nd Class due to my act. I would also like to mention that even though I did commit this act, I never once denied it or even lied about not committing this act. Thank you for your time and consideration.”
 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Documentation of completion for basic recruit correctional officer, dated August 25, 2003
Certificate of compliance from the commission on criminal justice standards and training, dated September 18, 2003
Federal Bureau of Investigation back ground check, dated May 23, 2003
Personal reference, dated April 2, 2003
Potential character witness questionnaire, dated October 30, 2002 (2 pages)
Potential character witness questionnaire, undated (2 pages)
Potential character witness questionnaire, dated October 3, 2002 (2 pages)
Personal reference, dated October 3, 2002
Potential character witness questionnaire, dated October 3, 2002 (2 pages)
Potential character witness questionnaire, dated October 3, 2002 (2 pages)
Potential character witness questionnaire, dated October 3, 2002 (2 pages)
Personal reference, dated April 2, 2003
Broward Country Sheriff’s office background check, dated April 4, 2003
Local law enforcement check Suwannee County Sheriff’s Office, dated April 28, 2003
Employment background investigative report, dated June 3, 2003
Florida Department of Law Enforcement – Officer profile sheet, dated September 11, 2003
Drug screening test results, dated April 21, 2003
Applicant’s DD Form 214
State Officer certification examination test results, dated August 27, 2003
Navy and Marine Corps Achievement Medal certificate, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     000324 - 000530  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 000531               Date of Discharge: 030110

 Length of Service (years, months, days):

         Active: 02 07 06
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4
Education Level: 12                        AFQT: 58

 Highest Rate: HT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 2.50 (2)                OTA: 2 .77

 Military Decorations: NAM

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

 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 :

020926:  NJP for violation of UCMJ, Article 134: Willfully and wrongfully expose himself in an indecent manner to EN3 on 020921.
         Award: Forfeiture of $600 per month for 2 months, restriction and extra duty for 43 days, reduction to E-3. No indication of appeal in the record.
020930:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
021003:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.
021031:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, and by a vote of 2 to 1, that the misconduct warranted separation, and by unanimous vote, recommended discharge general (under honorable conditions).

021116:  Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

021230:  Commander, Amphibious Group TWO directed the Applicant's discharge general (under 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 20030110 with a general (under honorable conditions) for misconduct due to the 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: The Applicant contends that he served the United States well and he is 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 (under honorable conditions) 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 nonjudicial punishment proceedings for a violation of Article 134 of the UCMJ. 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 denied.

Outstanding post-service conduct, 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, can be considered. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. In reviewing the applicant’s post service, the Board was impressed with the efforts he has begun to make in attempting to recoup his reputation, which has been sullied by his misconduct in the Navy. However, the Applicant has provided insufficient evidence of post-service accomplishments to warrant an upgrade on this basis. Therefore, relief will not be granted at this time. The Applicant is reminded that he remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at a personal appearance hearing is not required, but highly recommended.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until Present, 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 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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