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NAVY | DRB | 2004_Navy | ND04-00463
Original file (ND04-00463.rtf) Auto-classification: Denied


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


ex-OSSA, USN
Docket No. ND04-00463

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. 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 20041008. 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 personal problems caused me to be Discharged from the military. I feel that the prior 5 yrs of my service, I served dutiful and was proud to be In the military. After my marriage that’s why my personal problems interfered with my job performance. I feel that my type of Discharge – “Other Than Honorable” should be changed to Honorable because of my complete service record In which I’ve served. My problems are not to Hinder me from getting the VA Benefits In which I feel I’m entitled to such as the G.I. Bill and VA Loan. I would greatly appreciate It If you would take the time to reconsider your decision on upgrading my Discharge to “Honorable” so I can receive my VA Benefits. Thank-you very much for your time and consideration concerning this matter.”

 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)     900608 - 900805  COG
          Active: USN                        900806 - 940804  HON

 Period of Service Under Review :
Date of Enlistment: 940805               Date of Discharge: 951215

 Length of Service (years, months, days):
         Active: 01 04 11
          Inactive: None
Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 45
Highest Rate: OS3

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.15 (4)    Behavior: 2.85 (3)                OTA: 3.00

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, SASM (2), NUC, BER, CGUC with Bronze Star
Days of Unauthorized Absence: 3

 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 :

940805:  Applicant reenlisted for 4 years.
950428:  NJP. No further information found in service record. [Extracted from Enlisted Performance Record.]
950701:  Counseling: Advised of deficiency (late for watch), notified of corrective actions and assistance available.
950702:  Counseling: Advised of deficiency (late for watch), notified of corrective actions and assistance available.

 950726:  NJP for violation of UCMJ, Article 86 (4 specs): (1) Failed to go at the time prescribed to appointed place of duty on 0530-0718, 950630, to wit: morning muster, (2) Failed to go at the time prescribed to appointed place of duty on 0530-0740, 950701, (3) Failed to go at the time prescribed to appointed place of duty on 0530-0655, 950702, (4) Failed to go at the time prescribed to appointed place of duty on 0530-0750, 950711.
         Award: Forfeiture of $100 per month for 2 months, reduction to E-3. Punishment suspended for 4 months. No indication of appeal in the record.
950815:  NJP for violation of UCMJ, Article 86: Failed to go at the time prescribed to appointed place of duty on 0530-0620, 950807, violation of UCMJ, Article 107: False official statement on 950807.
          Award: Dismissed. EMI for 10 hours.
950924:  Applicant to unauthorized absence 0630, 950924.
950927:  Applicant from unauthorized absence 1130, 950927 (3 days/surrendered).

 951005:  Vacate reduction and forfeiture of $100.00 per month for 2 months awarded at CO’s NJP of 950726.
951005:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Go from appointed place of duty on 0100-0125, 950919, to wit: while on watch left his place of duty and was found asleep in the mobile environmental team work spaces, (2) Failed to go to appointed place of duty on 0530-0600, 950924, (3) Absence without leave – abandoning watch on 0630, 950924-1130, 950927, violation of UCMJ, Article 92: Failure to obey order or regulation on 0100-0125, 950919 in that he willfully failed to remain at his watch station and was found asleep in the mobile environmental team work spaces.
          Dismissed Article 86 (spec 1) dated 950919.
         Award: Reduction to E-2. No indication of appeal in the record.
951011:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.
951017:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
951113:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.
951205:  BUPERS directed the Applicant's discharge under other than 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 19951215 under other than honorable conditions for misconduct due to 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: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While he may feel that his personal problems were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service. His service record is marred by award of nonjudicial punishment (NJP) on four separate occasions for violating the UCMJ, Article 86 thus substantiating the misconduct . 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 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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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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