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NAVY | DRB | 2005_Navy | ND0500133
Original file (ND0500133.rtf) Auto-classification: Denied


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

ex-AN, USN
Docket No. ND05-00133

Applicant’s Request
The application for discharge review was received on 20041022. 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050107. After a thorough review of the available 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: OTHER THAN HONORABLE CONDITIONS/Misconduct - Convicted by a civil court for offense(s) occurring during current term of military service, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

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

1. “I deserved to be punished but to be branded for life isn’t right I don’t think. I respectfully request the correction be made… please”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Ltr from Applicant, undated


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890724 - 890914  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 890915               Date of Discharge: 920911

 Length of Service (years, months, days):

         Active: 02 11 27
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 35

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.65 (4)             Behavior: 3.35 (4)                OTA: 3.55

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, AFEM, SSDR, B’E’R

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Convicted by a civil court for offense(s) occurring during term of military service, authority: MILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

890921:  Retention Warning: Advised of deficiency (Non-swim qualified) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910722:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
         Award: Forfeiture of $400 per month for 2 month(s), restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

910722:  Retention Warning: Advised of deficiency (NJP for Article 92 Violation) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920615:  Civil Conviction: [SAN DIEGO COUNTY] for violation of PC246.3, discharge of firearm in inhabited dwelling.
 Sentence: $200 fine, 180 days commitment to sheriff work furlough program and three years formal probation. [Extracted from CO’s ltr of 920804.]

920619:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction. [Extracted from CO’s Ltr of 920804.]

920619:  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 statment. Applicant later withdrew his desire to make a statement. [Extracted from CO’s Ltr of 920804.]

920804:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction.

920902:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to civil conviction.

* Complete discharge package not contained in service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920911 under other than honorable conditions for misconduct due to civil conviction (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. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. An Under Other Than Honorable Conditions discharge 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 record is marred by civil conviction for discharge of a firearm in an inhabited dwelling, thus substantiating the misconduct for which he was separated. In addition, the Applicant was subject to nonjudicial punishment for a violating Article 92, failure to obey an order or regulation. 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 and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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, however, 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 any 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. The Naval Military Personnel Manual, (NAVPERS 15560C, effective 15 Aug 91 until 04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT.

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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