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NAVY | DRB | 2004_Navy | ND04-00581
Original file (ND04-00581.rtf) Auto-classification: Denied


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

ex-BTFA, USN
Docket No. ND04-00581

Applicant’s Request
The application for discharge review was received on 20040226. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region. The Applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20050329. 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 3 to 2 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

 Issues submitted by Applicant’s representative (Veterans of Foreign Wars):

1. “Equity of discharge based on mitigating factors while on active duty and post service success.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Sworn Statement from M. L. B_, dated October 3. 1995
Order in Suit to Modify Parent-Child Relationship, District Court, 102 Judicial District, Bowie County, Texas, dated May 31, 2000
Applicant’s DD Form 214
Character reference, dated January 13, 2004
License from Arkansas Department of Labor, dated July 15, 2003
Certificate of Appreciation
License for Journeyman Plumber, dated October 4, 2001
Two pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     930721 - 930726  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 930727               Date of Discharge: 960322

 Length of Service (years, months, days):

         Active: 02 07 26 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 31

 Highest Rate: BTFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.60 (2)    Behavior: 2.10 (2)                OTA: 2.10

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NDSM, NER, MUC

 Days of Unauthorized Absence: 26

 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 :

940310:  NJP for violation of UCMJ, Article 92: Fail to obey a lawful order on 940303, to wit: underage drinking, violation of UCMJ, Article 134: Incapacitated for the proper performance of duties on 940303.
         Award: Forfeiture of $127 per month for 1 month, restriction and extra duty for 13 days. No indication of appeal in the record.
950921:  NJP for violation of UCMJ, Article 86: Go from appointed place of duty on 2000, 950823, violation of UCMJ, Article 107 (2 specs): (1) With intent to deceive make a false official statement to Chief on 950823, (2) With intent to deceive, make a false official statement to PO2 on 950823.
         Award: Restriction for 30 days, reduction to E-2 (Reduction suspended for 6 months). No indication of appeal in the record.
951028:  Applicant to unauthorized absence 2300, 951028.

951031:  Applicant missed ship’s movement.

 951125:  Applicant from unauthorized absence 0806, 951124 (26 days/surrendered).
960105:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 2300, 951028 until 0806, 951125, violation of UCMJ, Article 87: Missed ship’s movement on 951031.
         Award: Restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
960109:  Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

960109:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
960221:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

960305:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

970317:  NDRB documentary record review Docket Number ND97-00342 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960322 under other than honorable conditions for misconduct due to commission of a serious offense (A and 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: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. The Applicant contends his disciplinary problems were the result of his wife’s harassment at the hands of another sailor. In support of his contention, the Applicant submitted his own sworn testimony to the Board and a statement given by his wife to Naval investigators. Although persuasive, such evidence did not satisfy to the NDRB’s satisfaction the harassment alleged by the Applicant. Furthermore, even if the Applicant had been successful in establishing his claims, the NDRB must note that the facts, as presented by the Applicant, would not have been sufficient to justify the his own misconduct. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that many members of the Navy face hardships of a similar degree as those of the Applicant. It must further be noted that the vast majority of those sailors are still able to serve honorably despite their hardships and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

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 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 could 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. The Board received and considered all of the Applicant’s submissions, including a court order for child custody, a police records check, electrician and boiler technician certifications, and a letter and certificate of appreciation. Unfortunately, despite his significant achievements, the Board found that the Applicant’s post-service accomplishments have been insufficient to mitigate his misconduct while in the Naval service. Relief denied.

The following if provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 87, missing movement, if adjudged at a Special or General Court-Martial.
C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .


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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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