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NAVY | DRB | 2004_Navy | ND04-00969
Original file (ND04-00969.rtf) Auto-classification: Denied


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

ex-SR, USNR
Docket No. ND04-00969

Applicant’s Request
The application for discharge review was received on 20040526. 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 American Legion 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 and the narrative reason of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/Misconduct, authority: NAVMILPERSMAN, Article 1910-104.






PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

1. “I was discharged for failure to obey a lawful order aboard the USS Bainbridge (CGN 25). In fact, we were at sea and I had been seasick the entire time. I was sitting on the mess deck with my head down and feet spread. A Chief Petty Officer came through telling everyone to clear the mess deck. Although I was nauseous I got up to leave when the Chief asked for my name. Later I was called to Captain’s Mast where the chief testified that I did not leave as promptly as necessary.
I am trying to reestablished myself as a productive member of society after being in Rehab since 1993 when I separated from service. To do this I am trying to better myself through education. I am requesting that you upgrade my discharge to Honorable so that I may utilize my Montgomery GI Bill benefits.”

 Issues submitted by Applicant’s counsel/representative American Legion:

 2. “Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

Review of the available records reflect that this former member maintained satisfactory performance and conduct markings with a 3.60 OTA and earned the NDSM, SASM (2), and SSDR. He was awarded NJP on 920617 for VUCMJ, Arts. 86, 92; NJP on 920728 for VUCMJ, Art. 86 (3 specs) and NJP on 930106 for VUCMJ, Art. 86. Following due process notifications, he discharged Under Honorable Conditions (General) due to misconduct as authorized by NAVMILPERSMAN, Art. 3630600.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because it is too harsh and because he wants his MGIB benefits. He has not submitted any additional documentation for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.”

 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: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 910304               Date of Discharge: 930419

 Length of Service (years, months, days):

         Active: 02 00 19
         Inactive: 00 00 29

 Age at Entry: 23                          Years Contracted: 8

Education Level: 12 (GED)                 AFQT: 42

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (2)    Behavior: 3.60 (2)                OTA : 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, SASM W/BRONZE STAR

 Days of Unauthorized Absence: 3

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

GENERAL (UNDER HONORABLE CONDITIONS)/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

910401:  Reported to active duty for 24 months.

 920617:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order; violation of UCMJ, Article 86: Absence without leave from his place of duty 0515, 920530.
         Award: Forfeiture of $100 per month for 1 month, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.
920728:  Applicant’s punishment of reduction to E-2 suspended at Commanding Officer’s NJP of 920617 vacated on 920728, due to continued misconduct.

920728:  NJP for violation of UCMJ, Article 86 (3 Specs): Unauthorized absence.
         Spec (1): Unauthorized absence on 920624.
         Spec (2): Unauthorized absence on 920626.
         Spec (3): Unauthorized absence on 920627.
         Award: Forfeiture of $100 per month for 1 month.

930106:  NJP for violation of UCMJ, Article 86: Absence without leave from 0700, 921219 to 0800, 921221.
         Award: Restriction and extra duty for 30 days. No indication of appeal in the record.
930204:  Applicant notified of intended recommendation if separation is approved, the characterization may be under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by Commanding Officer’s NJP held on 920617.
930224:  Applicant advised of his rights and having consulted 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 and to submit statements in his own behalf.
 Applicant did not object to separation.
930305:  Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments: (verbatim): SN S_ (Applicant) is being processed by reason of misconduct due to commission of a serious offense as evidenced by nonjudicial punishment on 920617 for failure to obey a lawful order on board USS BAINBRIDGE (CGN 25). SN S_ (Applicant)’s misconduct is summarized above (command provided proper documentation). SN S_ (Applicant) had a thorough defense consultation and re-elected his rights and waiver of privileges on 930224. I request a speedy separation for SN S_ (Applicant) due to his imminent EAOS. Processing for pattern of misconduct was precluded by a lack of any administrative discharge warning. I have considered the merits of his case and believe a discharge characterization of General is appropriate.

930319:  BUPERS directed the Applicant's discharge general (under 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 19930419 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).

 Issues 1-2: 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 and 92 thus substantiating the misconduct. 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 Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB). There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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 5420.174D 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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