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NAVY | DRB | 2004_Navy | ND04-01252
Original file (ND04-01252.rtf) Auto-classification: Denied


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

ex-UTCN, USN
Docket No. ND04-01252

Applicant’s Request
The application for discharge review was received on 20040806. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041112. 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: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “ I enlisted in the navy when I was a young kid not really having the proper guidance I didn’t realize the importance the job was in my life. Now ten years later and much more wise, I see where I could have been and where I am. With the chance I could rebuild the relationship with the USN. I’ve done nothing but the trade that the Seabees taught me. I would like to take what I have learned on the outside and on the inside and really help make a difference, not only for myself but, the U.S.A. I haven’t been into any “bad” trouble since my release. This should prove that I am a law-abiding citizen with the will and right to serve as a United States Navy Seabee. Please”
Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890925 - 900109  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 900110               Date of Discharge: 930226

 Length of Service (years, months, days):

         Active: 03 01 17
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 26

 Highest Rate: UT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.48 (5)    Behavior: 3.28 (5)                OTA : 3.44

 Military Decorations: None

 Unit/Campaign/Service Awards: NUC, NDR, SSDR, KLM, SASM, FMF Insignia (3 rd )

 Days of Unauthorized Absence: 1

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

900518:  NJP for violation of UCMJ, Article 86: (2 Specifications), Absence from unit. Specification 1: Absence from place of duty (NTC Gulfport, MS) 1830, 900413 until 0645, 900414; Specification 2: Absence from unit 0001, 900506 until 0330, 900506; violation of UCMJ, Article 91: Disrespectful in language towards a First Class Petty Officer; violation of UCMJ, Article 116: Breach of the peace on or about 900501 at NCTC Gulfport, MS by wrongfully opening exit door sounding alarm.
         Award: Restriction to NCBC Gulfport, MS for 30 days, extra duty for 30 days, reduction to E-1. No indication of appeal in the record.

900720:  NJP for violation of UCMJ, Article 92: Violation of a lawful general regulation on or about 900716, by having an earring in his nose.
         Award: Forfeiture of $150.00 pay per month for 2 months (1 month suspended for 6 months), extra duty and restriction for 30 days (suspended for 6 months). No indication of appeal in the record.
930106:  To UA 1300, 930106.

930107:  Surrendered on board CBC Port Hueneme, CA at 0700, 930107.

930107:  To UA 0710, 930107.

930108:  Surrendered on board CBC Port Hueneme, CA 0700, 930108.
930120:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 91: Insubordinate conduct toward a Petty Officer, violation of UCMJ, Article 92: Failure to obey order or regulation.
         Award: Forfeiture of $200.00 pay per month for 2 months, restriction to CBC for 30 days, extra duty for 30 days, reduction to next inferior pay grade. No indication of appeal in the record.
930120:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by all records of non-judicial punishment in your service record.
930120:  Applicant advised of his 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 and to submit statements on own behalf either verbally or in writing before an administrative board or in writing if an administrative board is not convened.
930208:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by all records of non-judicial punishment in his service record.

930211:  Applicant’s statement.

930222:  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 19930226 under other than 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. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions for violation of UCMJ, Articles 86, 91, 92, and 116. The violation of UCMJ, Articles 91 and 92 are considered serious offenses. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an under honorable (general) characterization of service. An upgrade is inappropriate. Relief denied.

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’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety occurred during the Applicant’s enlistment. Additionally, 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. Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. 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 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. 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.

D. 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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