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NAVY | DRB | 2004_Navy | ND04-00552
Original file (ND04-00552.rtf) Auto-classification: Denied


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

ex-OSSR, USN
Docket No. ND04-00552

Applicant’s Request
The application for discharge review was received on 20040220. 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 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 20040922. 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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated:

1. “My name is G_ D. D_. I served in the U.S. Navy on onboard U.S.S. Thomas S Gates from August 1996 to October 1998. I received an Administrative Discharge with Other Than Honorable Conditions. I received that discharge because I had gotten into a fight while on board the ship. I am writing in reference to that discharge.

I am currently trying to get commissioned as a police officer in my hometown of Lafayette, La. Right now I am working for U.S. Fugitive Enforcement Agency. I have always wanted to become a police officer and once commissioned, I plan to work for the Narcotics Department. I really want to work to get the drugs off of the streets. I just recently got married to a beautiful woman, and later we plan on having children. I would really like to make a difference for my children and my future grandchildren. The only speed bump in the road for me is that my discharge is not an honorable one.

I wish that I could change the past and never have gotten into that fight, but I can’t. I could tell you that I was young and immature, but what really matters is that I learned what my mistake were and I have learned from them. I consider myself to be a level headed hard working and mature individual. I personally think that I would be a great asset to my community.

I would really appreciate it if you can change my discharge to an Honorable one. I thank you for your time and consideration.

Respectfully,

[signed]

G_ D. D_”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     960316 - 960805  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 960805               Date of Discharge: 981002

 Length of Service (years, months, days):

         Active: 02 01 28
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 59

 Highest Rate: OSSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDM

 Days of Unauthorized Absence: 15

* No Marks Found

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

970828:  NJP for violation of UCMJ, Article 86: unauthorized absence.
         Award: Restriction and extra duty for 15 days, reduction to E-1 suspended for 6 mos. No indication of appeal in the record.
970828:  Retention Warning: Advised of deficiency (NJP on 28 Aug 97 for violation of the UCMJ Art 86), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980529:  Applicant to UA

980615:  Applicant from UA (15 days/S).

980623:          NJP for violation of UCMJ, Article 86: unauthorized absence; violation of UCMJ Article 87 (2 specs): missing movement; violation of UCMJ Article 92 (2 specs): disobey a lawful order..
         Award: Forfeiture of $539 per month for 2 month(s), restriction and extra duty for 30 days, reduction to OSSA suspended for 6 mos. No indication of appeal in the record.

980623:  Retention Warning: Advised of deficiency (NJP on 23 June 98 for violation of the UCMJ Art 86, Art 87 (2 specs) and article 92 (2 specs), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980929:  NJP for violation of UCMJ, Article 117: Provoking speeches or gestures; violation of UCMJ Article 128: Assault.
         Award: Forfeiture of $463 per month for 2 month(s), restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

980929:  Punishment of RIR to OSSA suspended at CO’s NJP of 23 Jun 98 vacated this date due to continued misconduct.

980930:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense evidenced by your NJP of 980929 for a violation of Article 128 and by reason of a pattern of misconduct evidenced by your NJP’s of 980929 for a violation of Article 128; 980828 for a violation of Article 86; 980623 for a violation of Article 86, two violations of Article 87 and two violations of Article 92..
980930:  Applicant advised of his rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

981001:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and by reason of pattern of misconduct. Commanding Officer’s comments: [He is devoid of integrity and is severely lacking in the Navy’s core values.]

981002:  [Commander Western Hemisphere Group] 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 19981002 under other than honorable conditions for misconduct due to commission of a serious offense (A & B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

Issue 1. An Under Other Than 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 three nonjudicial punishment proceedings for eight violations of Articles 86, 87, 92, 117 and 128 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief is not warranted.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 naval service. 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. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. 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), 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 In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article128, assault, if adjudged at a Special or General Court Martial

C. 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.

D. 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.

E. 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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