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NAVY | DRB | 2004_Navy | ND04-00764
Original file (ND04-00764.rtf) Auto-classification: Denied


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

ex-DCFN, USN
Docket No. ND04-00764

Applicant’s Request
The application for discharge review was received on 20040408. 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 listed Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

 The NDRB did note administrative error(s) on the original DD Form 214. Block 18, Remarks, should contain the following statement: "CONTINUOUS HONORABLE ACTIVE DUTY FROM 89AUG30 UNTIL 96APR11.” The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.







PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 No issues were submitted by the Applicant.

Issues submitted by Applicant’s counsel/representative ( VETERANS OF FOREIGN WARS):
1. “Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His record were reviewed on November 16, 2004 and the following comments are hereby submitted.

Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provision of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to the merits of this application.

Review of the available records reflect that this former member received the Southwest Asia Medal w2*, Navy Unit Commendation Ribbon, Sea Service Deployment Ribbon w4*, and the Kuwait Liberation Medal.

We refer this case to the Board for their careful and compassionate consideration and request the Applicant’s discharge be reviewed for an Honorable Discharge.”

 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)     890823 - 890829  COG
         Active: USN                        890830 - 930815  HON
 Active: USN                        930816 - 960411  HON

 Period of Service Under Review :
Date of Enlistment: 960412               Date of Discharge: 970721

 Length of Service (years, months, days):

         Active: 01 03 09
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

Education Level: 12                        AFQT: 26

 Highest Rate: DC2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)    Behavior: 2.00 (1)                OTA: 2 .86

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM(w2b*), NUC, SSDR(4), KLM, FLOC, JMU, CAR, MUC

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

 Chronological Listing of Significant Service Events :

960412:  Reenlisted at ACU-5 CAMP PENDLETON CA for 2 years.

 961118:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Restriction for 10 days, reduction in rate (suspended for 6 months). No indication of appeal in the record.

970511:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 87: Missing movement.
         Award: Forfeiture of $300.00 pay per month for 1 month, restriction for 60 days, vacation of reduction in rate from previous NJP, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.

970609:  NJP for violation of UCMJ, Article 92: Dereliction in the performance of duties.
         Award: Forfeiture of $598.00 pay per month for 1 month, reduction to E-3. No indication of appeal in the record.
970618:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense as evidenced by CO’s NJP on 960511 for violation of the UCMJ, Article 87 (Missing Movement) and misconduct due to a pattern of misconduct as evidenced by CO’s NJP on 961118 for violation of the UCMJ, Article 86 (Unauthorized Absence from Unit); CO’s NJP on 960511 for violation of the UCMJ, Article 86 (Unauthorized Absence from Unit); Article 87 (Missing Movement) and CO’s NJP on 970609 for violation of the UCMJ, Article 92 (Dereliction of Duties).
970618:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
970623:  Commanding Officer directed discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense as evidenced by CO’s NJP on 960511 for violation of the UCMJ, Article 87 (Missing Movement) and misconduct due to a pattern of misconduct as evidenced by CO’s NJP on 961118 for violation of the UCMJ, Article 86 (Unauthorized Absence from Unit); CO’s NJP on 960511 for violation of the UCMJ, Article 86 (Unauthorized Absence from Unit); Article 87 (Missing Movement) and CO’s NJP on 970609 for violation of the UCMJ, Article 92 (Dereliction of Duties).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970721 with a general (under 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: Characterization of service as general (under honorable conditions) 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 the award of nonjudicial punishment (NJP) on three separate occasions for violations of the UCMJ, Articles 86, 87 and 92 thus substantiating the misconduct. Missing movement is considered a serious offense. The Applicant’s summary of service clearly reflects 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. An upgrade to honorable conditions would be inappropriate. 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 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 14, effective
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. 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.

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

 D. 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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