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NAVY | DRB | 2004_Navy | ND04-00618
Original file (ND04-00618.rtf) Auto-classification: Denied


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

ex-AOAN, USN
Docket No. ND04-00618

Applicant’s Request
The application for discharge review was received on 20040302. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary 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 4 to 1 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 in 8 years of service with no other adverse action I was also honorably discharged after serving from July 8 1987 to July 4 1991. I have various service ribbons & metals and I feel that I should not be denied all veteran benifits after serving for 8 years. Mostly sea duty

I was on sea duty for over 3 years. We evacuated Navy personnel to the aircraft carrier Midway from Subic Bay when the volcano erupted. I was also in the UAE during Desert Storm. My last duty assignment and major command was at NAVAIRWPNSTA CHINA LAKE CA, Where I was give an OTHER THAN HONORABLE CONDITIONS for none payment of bills. Even though I couldn’t get any credit because I was out of the United States, I managed to pay of all my Bills. My Mother (J_ L_) is a Jefferson Parish Deputy of 20 years, I have worked for a tug boat company for 2 years and 6 years for AUTOMATION USA. I would appreciate if you would consider upgrading my discharge so I can uptain some of my Veterans Benefits after serving 8 years in the Navy and possible Join the Veterans Affair Organization. As it stands they will not accept me.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214.
Certification of Military Service
Character reference letter from J_ C_, dated 5 Apr 2004
Letter from Applicant, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     861024 - 870707  COG
         Active: USN                        870708 - 910704  HON

 Period of Service Under Review :
Date of Enlistment: 910705               Date of Discharge: 950818

 Length of Service (years, months, days):

         Active: 04 01 14
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4 (5 months extension)

 Education Level: 12                        AFQT: 32

 Highest Rate: AO2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.53 (9)    Behavior: 3.58 90)                OTA: 3.51

 Military Decorations: None

 Unit/Campaign/Service Awards: OSR, NER, SSDR (3), NDSM, NUC, JMUA, SWAS w/2 Bronze Stars, KLM, GCA

 Days of Unauthorized Absence: None

 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 :

950524:  NJP for violation of UCMJ, Article 123a: Making, drawing or uttering check, draft or order without sufficient funds, violation of UCMJ Article 92: Orders violation, violation of UCMJ Article 86: Failure to go to appointed place of duty.
         Award: Forfeiture of half month’s per month for 2 months (6 months suspended), extra duty for 45 days, reduction to E-4. No indication of appeal in the record.
950622:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty; violation of UCMJ Article 123a: Making, drawing or uttering check, draft or order without sufficient funds.
         Award: Restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
950622:  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.
950622:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
950726:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

950802:  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 19950818 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: The Applicant contends that his discharge should be upgraded because it was based on one isolated incident in eight years of service with no other adverse action. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A general 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 two nonjudicial punishment proceedings for violations of Articles 86, 92, and 123a of the UCMJ. The record also indicates the Applicant’s misconduct continued after being afforded counseling by the Command Financial Specialist. 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. Relief is not warranted.

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 any documentation for the Board to consider. Relief denied.

Likewise, there is no law or regulation that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. 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.

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. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 123a, Making, Drawing, or Uttering Check, Draft, or Order Without Sufficient Funds, 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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