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NAVY | DRB | 2004_Navy | ND04-01377
Original file (ND04-01377.rtf) Auto-classification: Denied

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


ex-AR, USNR
Docket No. ND04-01377

Applicant’s Request
The application for discharge review was received on 20040830. 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 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: 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. “I E_ L_ (Applicant) has really matured over the last couple of years. I turned my life over to the Lord and going by the rules and being honest is more beneficial, than disobeying the law. I would like too changing my environment and further my education, so that I can establish a career and support my family. Therefore I E_ L_ (Applicant), respectfully request an honorable upgrade on my discharge.”

 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: None
         Active: None
Period of Service Under Review :
Date of Enlistment: 950120               Date of Discharge: 960827

 Length of Service (years, months, days):
         Active: 01 05 15
          Inactive: 00 01 23
Age at Entry: 20                          Years Contracted: 8

 Education Level: 7/8              AFQT: 38
Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: NOB                  Behavior: 2.80 (1)                OTA: 2.00 (4.0 system)
 Performance: 2.50 (2)    Behavior: 1.50 (2)                OTA: 2.34 (5.0 system)

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, NUC, BER, NATO

 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 :

950919:  NJP for violation of UCMJ, Article 121: Larceny on 950907.
         Award: Forfeiture of $427 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
950919:  Retention Warning: Advised of deficiency (Larceny on 950907), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960625:  NJP for violation of UCMJ, Article 121: Larceny on 960516.
         Award: Forfeiture of $437 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
960806:  NJP for violation of UCMJ, Article 86 (6 specs): Unauthorized absence, violation of UCMJ, Article 91: Disrespect towards a petty officer on 960717, violation of UCMJ, Article 92: Disobey lawful order on 960717, violation of UCMJ, Article 134: Breaking restriction on 960801.
         Award: Confinement on bread and water for 3 days. No indication of appeal in the record.
960807:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and a pattern of misconduct.
960807:  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 and to submit a statement.
960817:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and a pattern of misconduct.
9608xx:  Commander, Amphibious Group TWO 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 19960827 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 larceny, unauthorized absence, disrespect to a petty officer, disobedience of lawful orders, and breaking restriction. 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 honorable or under honorable (general) characterization of service. An upgrade is inappropriate. Relief denied.

 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.

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), 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. 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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