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NAVY | DRB | 2004_Navy | ND04-01167
Original file (ND04-01167.rtf) Auto-classification: Denied


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

ex-ASAA, USN
Docket No. ND04-01167

Applicant’s Request
The application for discharge review was received on 20040709. 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 listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050519. 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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “Respectfully request upgrade of discharge to further education at Florida Community College at Jacksonville. Also to uphold a job at the Federal Post Office.”

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

2. “Equity Issue(s): The applicant requests that the equity of his discharge be considered in light of mitigating circumstances. He also request that his post service history be considered.

Statement: In accordance with 32 CFR § 724, and SECNAVNST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition.

The applicant served in the United States Navy from April 7, 1999 until November 1, 2003. He is seeking to upgrade his discharge from General Under Honorable Conditions to Honorable. He contends that the circumstances surrounding his discharge was without merit and unjust. The applicant contends that his General discharge is inequitable in light of his Honorable service while on active duty, prior to the events surrounding his discharge.

The Veterans of Foreign Wars 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 USC § 1553, and set forth in 32 CFR § 724, and SECNAVNST 5420.174D.

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:
Applicant’s DD Form 214 (2)
Student receipt from Florida Community College, dated April 27, 2004
Student transcript from Florida Community College
Applicant’s academic record, printed May 12, 2003
Letter of appreciation, dated August 8, 2000
Evaluation Report and Counseling Records (4 pages)
Statement signed by A_ L. H_, T_ B. J_, J_ N. J_, M_ G_, N_ J. A_, and T_ T_, undated
Statement from Applicant, undated (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USAFR (DEP)    Unknown - 9809   ELS (Refused to obligate)
 USNR (DEP)      990330 - 990407  COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 990408               Date of Discharge: 031101

 Length of Service (years, months, days):

         Active: 04 06 24
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 49

 Highest Rate: ASAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.25 (4)             Behavior: 2.25 (4)                OTA: 2 .83

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, NDSM

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

010423:  NJP for violation of UCMJ, Article 81: Conspiracy.
         Award: Forfeiture of $584 per month for 1 month, reduction to E-2. Reduction suspended for 5 months. No indication of appeal in the record.
010920:  Vacate suspended reduction to E-2 awarded at Commanding Officer’s NJP dated 010423 due to continued misconduct.

010921:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of $521 per month for 1 month, restriction and extra duty for 7 days, reduction to E-1. No indication of appeal in the record.
031101:  DD Form 214: Applicant discharged with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense, authority: NAVMILPERSMAN, Article 1910-142.

 Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031101 with a general (under honorable conditions) for misconduct due to commission of a serious offense (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

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 that he served the United States well and he is entitled to an upgrade. 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 for behavior not sufficiently meritorious to warrant an honorable discharge. T he Applicant’s service was marred by two nonjudicial punishment proceedings for a violation of UMCJ Article 81, conspiracy and Article 86, unauthorized absence. 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. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law 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.

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 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), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-142 [formerly 3630605]. SEPARATION 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 V, Para 502, Propriety .

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



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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