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NAVY | DRB | 2005_Navy | ND0500298
Original file (ND0500298.rtf) Auto-classification: Denied


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

ex-SKSN, USN
Docket No. ND05-00298

Applicant’s Request
The application for discharge review was received on 20041130. 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 20050316. 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 3630605.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “My discharge was inequitable because it was based on one isolated incident in 11 years of honorable service. I had 2 Good Conduct Medals and had just received a NAM (Navy Achievement Medal). I believe I was made out to be an example by a new Commanding Officer. My 11 years of honorable service was never taken into consideration of my request.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
USN Honorable discharge certificate
Certificate of award of the Navy Achievement Medal

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     850119 - 850728  COG
         Active: USN                        850729 - 890612  HON
                  USN                       890613 – 951009  HON

 Period of Service Under Review :
Date of Enlistment: 951010               Date of Discharge: 961101

 Length of Service (years, months, days):

         Active: 01 00 22
         Inactive: None

 Age at Entry: 28                          Years Contracted: 2

 Education Level: 12                        AFQT: 86

 Highest Rate: SK2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (2)             Behavior: 2.00 (2)                OTA: 2.93

 Military Decorations: None

 Unit/Campaign/Service Awards: NER (3), SSDR, NMCAM, GCM (2)

 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 3630605.

 Chronological Listing of Significant Service Events :

960620:  NJP for violation of UCMJ, Article 81 (2 specs): Conspiracy, violation of UCMJ, Article 92: Disobeyed a lawful general regulation, violation of UCMJ, Article 108 (3 specs): Selling military property without proper authority.
         Award: Forfeiture of $757.10 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4. No indication of appeal in the record.
960909:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
960909:  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.
960911:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by his NJP on 960620 and by an Incident/Complaint Report for an incident on 960906 charging him with violation of the UCMJ, Articles 109, destruction of property other than military property of the U.S.; Article 117, provoking gestures or speech; Article 128, assault; and Article 134, disorderly conduct, drunkenness. In the months following his apprehension by the NCIS, he was directly involved in two separate incidents of disorderly conduct, one of which is noted above.

961025:  Commander, U.S. Naval Forces, Japan 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 19961101 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) for violation of the UCMJ, Articles 81, 92, and 108 for conspiracy, disobeying lawful orders, and selling military property without the proper authority. Subsequent to the NJP, the Applicant was involved in an incident that violated Articles 109, 117, 128, and 134 of the UCMJ for damage to civilian property, provoking speech, assault and disorderly conduct. With the exception of the violation of Article 117, provoking speech, each of the other offenses above is considered a serious offense under the UCMJ. 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. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. An upgrade is inappropriate. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country for the enlistment under review. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety is evident 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. 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), Change 14, effective
03 Oct 96 until 971212, Article 3630605, 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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