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NAVY | DRB | 2004_Navy | ND04-00531
Original file (ND04-00531.rtf) Auto-classification: Denied


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

ex-ENFR, USNR
Docket No. ND04-00531

Applicant’s Request
The application for discharge review was received on 20040211. 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 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “I humbly request an upgrade to honorable. I would like to make things right with the Navy. I ask the review board to read my explaination of my actions, forgive me, and have mercy on my case.”
Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter of Explanation (5 pages)
Copies of Letters of Appreciation (3)
Copy of Extension Request
Copy of CO’s Letter of Appreciation Delivery Letter
Copy of Postal Envelope
Copy of CO’s Advancement Recommendation Letter
Copy of Evaluation Comments
Copy of CO’s Letter of Advancement to ENFN (E3)
Copy of Request for Service Record Entry
Copy of JQR Qualification Test Information
Copy of Evaluation Comments
Copy of Character Reference Letter dated May 17, 1994
Copy of Employment Reference Letter dated May 17, 1994
Copy of Employment Reference Letter dated May 19, 1994
Copy of Employment Reference Letter from Supervisor dated May 23, 1994
Copy of Employment Reference Letter dated February 20, 1995
Copy of Employment Recommendation Letter dated January 26, 2000
Copy of Exceptional Performance Letter dated June 14, 2000
Copy of Employment Letter of Appreciation dated May 4, 2001
Copy of Employment/Character Reference Letter
Copy of Certificate of Commendation

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     None
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 890130               Date of Discharge: 920428

 Length of Service (years, months, days):

         Active: 02 08 20
         Inactive: 00 06 09

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 47

 Highest Rate: ENFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (3)    Behavior: 3.20 (3)                OTA : 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, OSR

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

890809:  Ordered to active duty for 36 months under the Active Mariner program.
910625:  NJP for violation of UCMJ, Article 128: Aggravated assault with a dangerous weapon.
         Award: Forfeiture of $50.00 pay per month for 1 month, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.
920116:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward a Commissioned Officer, violation of UCMJ Article 92: Failure to obey a lawful order.
         Award: Forfeiture of $200.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction in rate (suspended for 6 months). No indication of appeal in the record.

920313:  Reduction in rate suspended at CO’s NJP of 920116 vacated due to continued misconduct.

920313:  NJP for violation of UCMJ, Article 92: (2 Specifications), Disrespect to a Petty Officer, dereliction of duty, violation of UCMJ Article 128: Simple assault, violation of UCMJ, Article 134: Communicating a threat.
         Award: Forfeiture of $501.90 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
920402:  Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of pattern of misconduct due to the commission of a serious offense.
920402:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights. Applicant did not object to separation.
920408:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920423:  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 19920428 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 impropriety or inequity must have existed during the period of enlistment in question. No impropriety or inequity occurred 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, 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. Evidence of continuing educational pursuits, employment record, documentation of community service, and certification of non-involvement with civil authorities are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct. 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. The Applicant’s discharge characterization accurately reflects his service to this country and therefore, no relief will be granted at this time.

The Applicant states in his letter of explanation that he was told that after five years he could have his discharge upgraded. There is no law or regulation that authorizes a discharge to be automatically upgraded after five years. A former service member has 15 years, from the date of discharge, to petition the board for consideration of an upgrade. The Board does not automatically upgrade a discharge after five years. 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), effective 15 Aug 91 until
04 Mar 93, 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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