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NAVY | DRB | 2005_Navy | ND0500540
Original file (ND0500540.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-MSSN, USN
Docket No. ND05-00540

Applicant’s Request
The application for discharge review was received on 20050202. The Applicant requested that his characterization of service received at the time of discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060209. After a thorough review of all 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 characterization of the discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to civil conviction.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“The under other Than Honorable discharge is inequitable because, (1) I served my country in the military for 19 years, 4 months. (2) My Misconduct discharge is due to a civilian conviction and, not the result of a military court-Martial. (3) Why was I denied help from Family Advocacy. (4) Am I entitle to veteran’s benefits and Program, (5) Also Medical Benefits and Program. Gulf War Veterans”

 Applicant’s Remarks: (Taken from the DD Form 293.)

“If all you can do for me at This Time is request that my discharge be upgrade To an Honorable discharge, that would be most appreciated.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Statement of facts (3 pages)
Applicant’s DD Form 214 for period of September 21, 1977 through September 20, 1981
Applicant’s DD Form 214 for period of September 21, 1981 through April 11, 1997
Leave and Earnings statement for period of 01 through 31 January 1997
Record of NJP on September 09, 1981
Notice of administrative board action, dated February 26, 1997 (2 pages)
Military Training Certificate, dated August 29, 1977
Honorable Discharge certificate, dated November 01, 1990
Certificate of reenlistment, dated November 02, 1990
Letter of Commendation for period of January 05 through June 27, 1987
Certificate of Appreciation, date stamped January 23, 1986
Certificate of Appreciation, date stamped October 07, 1986
First Good Conduct Award, dated September 09, 1985
Certificate of completion, from City Colleges of Chicago, dated February 05, 1987
Documents from Applicant’s service record (18 pages)
EKG, dated January 10, 2000
EKG, dated October 05, 1995
Agreement to extend enlistment, dated March 05, 1990 (2 pages)
Documents from the Applicant’s in-service medical record (15 pages)
Character reference, from C_ J_, dated April 16, 1997 (2 pages)
Character reference, from D_ M_, dated April 13, 1997 (2 pages)
Character reference, from J_ M_ and T_ M_, undated
Note from Applicant, undated
Worldwide Bible Broadcasters Diploma, dated November 28, 2001
Certificate of completion in reading, from City Colleges of Chicago, dated February 05, 1987
Certificate of Achievement in language, from Cantilena Desert Institute, dated November 18, 2001
Certificate of Achievement in reading comprehension, from Cantilena Desert Institute, dated November 18, 2001
Certificate of Achievement in spelling, from Cantilena Desert Institute, dated November 18, 2001
Verification of attendance from South Bay Detention Facility, dated September 11, 1997
Program participation from South Bay Detention Facility, dated April 9, 1997
Program participation from South Bay Detention Facility, dated June 02, 1997
Attendance record to AA/NA Meetings, dated May 30 through September 16, 1997

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
          Active: USN      19770921 - 19810920      HON
                  USN      19810921 - 19871216      HON
                  USN      19871217 - 19901101      HON
Period of Service Under Review :
Date of Enlistment: 19901102             Date of Discharge: 19970411

 Length of Service (years, months, days):

         Active: 06 05 09                  (Total Service: 19 06 20)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: Unknown
         Confinement:              Unknown

 Age at Entry: 31

 Years Contracted: 6 (14 month extension)

 Education Level: 12                                 AFQT: 35

 Highest Rate: MS2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.9 (4)              Behavior: 3.9 (4)                 OTA: 3 .80 (4)
 Performance: 4.0 (1)              Behavior: 2.0 (1)                 OTA: 3 .00 (1)
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Armed Forces Expeditionary Medal (2), Navy “E” Ribbon (5), Meritorious Unit Commendation, Sea Service Deployment Ribbon (7), Southwest Asia Service Medal, Third Good Conduct Award for period ending 93Sep09


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

UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT, authority: MILPERSMAN, Article 3630610.
Chronological Listing of Significant Service Events :

901102:  Reenlisted this date for a term of 6 years.

960103:  Applicant extended enlistment 14 months, new EAOS 980101.
970227:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to civilian conviction. [Extracted from supporting documents provided by the applicant.]

970315:  Evaluation Report: “Petty Officer M_’s (Applicant) evaluation is submitted as “Not Observed” due to his extended incarceration in the South Bay Detention Center.”

Service record was missing the administrative discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged, in absentia, on 19970411 by reason of misconduct due to civilian conviction (A) with a service characterization of under other than honorable conditions. After a thorough review of all 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 Board presumed regularity in the conduct of governmental affairs (D).

 C ertain serious offenses, even though isolated, warrant separation from naval service. When a service member is convicted of a civil offense that member may be separated by reason of misconduct due to civil conviction, the misconduct for which the Applicant was discharged. Reference (A) states that this type of discharge is normally characterized as under other than honorable conditions. An honorable characterization is appropriate w hen a service member has met the standard of acceptable conduct and performance. Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis for the characterization of a Sailor’s overall service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inequitable. A preponderance of the evidence supports the conclusion that the Applicant was convicted of a civil offense, that separation from the Naval service was appropriate, and that an under other than honorable conditions discharge was warranted. Relief denied.

The Applicant stated that he was discharged as a result of a civil conviction not court marital. For the edification of the Applicant, the administrative discharge process is separate and distinct from punitive proceedings such as NJP and court-martial. The a dministrative discharge process may be initiated prior to, following, or even in the absence of court martial as a completely separate process. The Applicant’s issue is without merit. Relief is not warranted.

The Applicant asked about his eligibility for veteran’s benefits. The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. The NDRB has no authority to upgrade a discharge for the purpose of enhancing medical, employment, housing or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

In the absence of an administrative discharge package, the Board presumed regularity of governmental affairs. Therefore, the Board presumed that the Applicant’s discharge was conducted in accordance with that described in reference “A”. The record documents the Applicant’s proper notification of administrative separation by reason of civilian conviction with the least favorable characterization of service as under other than honorable conditions. The record also indicated that the Applicant waived his rights to an administrative discharge board, thereby failing to object to his discharge or the characterization of service. If the Applicant feels his discharge was administratively flawed he bears the burden of establishing his issues through the presentation of substantial and credible evidence.

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. Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 03 Oct 96 until 11 Dec 97, Article 3630610, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - CIVILIAN CONVICTION .
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, Para 211, Regularity of Government Affairs .

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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