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NAVY | DRB | 2004_Navy | ND04-00455
Original file (ND04-00455.rtf) Auto-classification: Denied


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

ex-BMSR, USN
Docket No. ND04-00455

Applicant’s Request
The application for discharge review was received on 20040121. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general under honorable conditions. 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 20041001. 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, authority: NAVMILPERSMAN, Article 3630600.
.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “My discharge was inequitable because it was based on one isolated incident that happened in my military term. I realize it was a major offence, but for me I think it was more a psychological thing than anything. It happened right after coming home from a Med-cruise and I overreacted on my liberty
The reason I am requesting a discharge change is because I’m trying to start a career working for the county sheriffs office. They wont’ hire me with an OTH discharge. I realize I don’t have any supporting documents or representation, so I know this decision will be difficult.
Thank you”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR(DEP)      910402 - 910708  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 910709               Date of Discharge: 940815

 Length of Service (years, months, days):

         Active: 03 00 17         Does not exclude lost time
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 54

 Highest Rate: BMSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 3.00 (2)                OTA: 3.00

 Military Decorations: None

 Unit/Campaign/Service Awards: BER, SASM with Bronze Star, SSDR, NDSM, MUC

 Days of Unauthorized Absence: 61

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

931130:  NJP for violation of UCMJ, Article 86: Fail to go to appointed place of duty on 931114, to wit: Duty Section, violation of UCMJ, Article 92: Dereliction of duty on 931119.
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.

940627:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (3 specs):
         Specification 1: Unauthorized absence from 0700, 940328 to 1830, 940331 (4 days/surrendered).
         Specification 2: Unauthorized absence from 0700, 940409 to 1722, 940603 (55 days/surrendered).
         Specification 3: Unauthorized absence from 0700, 940606 to 940608 (2 days/surrendered).
         Charge II: violation of the UCMJ, Article 87:
         Specification: Missed movement on 940414.
          Finding: to Charge I and II and the specifications thereunder, guilty.
          Sentence: Confinement for 24 days, bread and water for 3 days, forfeiture of $450.00, reduced to E-1.
         CA action 940628: Sentence approved and ordered executed.

940628:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by absent without leave (30 days or more).
940628:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

940707:  Applicant found fit for confinement.

940723:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

940802:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940815 under other than 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. 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 one occasion and a summary court-martial on another occasion. 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, and falls short of that required for an honorable or under honorable (general) characterization of service. An upgrade is inappropriate. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety 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, to enhance employment opportunities, or for 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), Change 5, effective
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT.

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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