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NAVY | DRB | 2005_Navy | ND0500599
Original file (ND0500599.rtf) Auto-classification: Denied


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

ex-ACAN, USN
Docket No. ND05-00599

Applicant’s Request
The application for discharge review was received on 20050223. The Applicant requests the characterization of service received at the time of discharge be changed to honorable with a narrative reason change to CONVENIENCE OF THE GOVERNMENT. 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 20050727. 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 and reason for discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “Character of discharge inequitable for the offense. I had no previous disciplinary problems. Received inadequate legal assistance -- no local attorney -- done by phone to Memphis TN. Original NJP 5/7/02 & appeal denial 5/22/02 was accepted by me & Chief TNG Corpus Christi TX & then changed . I feel my honorable discharge should include “Convenience of the Government”.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member copy 4)
NJP Appeal Decision Letter dated May 22, 2002
Captain’s Mast Accused's Notification and Election of Rights (4 pages)
Applicant’s Letter of Appeal of NJP dated May 17, 2002 (3 pages)
Letter from Applicant to her U.S. Senator dated June 3, 2002 (4 pages)
Supervisor Designation Memorandum dated April 10, 2002
NAVPERS 1070/604 Awards Page from Applicant's service record
Navy and Marine Corps Achievement Medal Citation
Evaluation Report & Counseling Record for period from 010202 to 010715
Evaluation Report & Counseling Record for period from 991106 to 010201
Merit Award for Junior Sailor of the Quarter, NAS, Corpus Christi from GEICO Direct
Auto Insurance (undated)
Merit Award for Junior Sailor of the Year, NAS, Corpus Christi from GEICO Direct
Auto Insurance (2001)
Letter from Applicant dated June 7, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990416 - 990825  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 990826               Date of Discharge: 020613

 Length of Service (years, months, days):

         Active: 02 09 16
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 87

 Highest Rate: AC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.50 (2)             Behavior: 4.00 (2)                OTA: 4 .02

 Military Decorations: None

 Unit/Campaign/Service Awards: N&MC Achievement Medal, National Defense Service Medal

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

020514:  NJP for violation of UCMJ, Article 92: (2 Specifications), Failure to obey order or regulation.
         Award: Forfeiture of ½ month pay per month for 2 months, 45 days restriction and extra duty, reduction to E-3.

020517:  Applicant appeals results of NJP to Chief of Naval Air Training on the grounds that the punishment was disproportionate to the offense.

020522:  Chief of Naval Air Training concluded that the punishment awarded at the Applicant's NJP was not disproportionate to the offenses committed; appeal is denied. Appeal was reviewed by a judge advocate.
020613:  Applicant was discharge with a characterization of general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. Authority: MILPERSMAN 1910-142.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020613 with a characterization of general (under 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

The Applicant contends that her discharge was a penalty that was disproportionate to the offense for which she was awarded nonjudicial punishment (NJP). The Applicant is advised that her administrative separation from the Naval service was not part of the punishment imposed at her NJP of 20020514. In fact, the decision to administratively separate a service member is always made independently of the imposition of NJP. Per regulation, separation processing of a service member for misconduct due to the commission of a serious offense may be initiated when the offense warrants a punitive discharge per Appendix 12 of the Manual for Courts-Martial for the same or closely related offense. While her command's decision to separate her was made independently, that decision is nonetheless substantiated by the awarding of NJP for violation of two specifications of UCMJ Article 92 Failure to obey order or regulation . Accordingly, relief on this basis is denied.

The Applicant also contends that her discharge was inequitable because she had only one infraction on an otherwise clean service record. Additionally, she requests that the narrative reason for her separation be changed to CONVENIENCE OF THE GOVERNMENT. The NDRB advises the Applicant that, despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline. The Applicant's misconduct is documented in her application package to the NDRB, which shows her service record to be marred by the finding at a nonjudicial punishment (NJP) proceeding on 20020514 of violation of UCMJ Article 92 Failure to obey order or regulation. This misconduct substantiates the reason for her separation as well as her characterization of service as general (under honorable conditions). No other characterization could more clearly describe the Applicant's service. Relief on this basis is denied.

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 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 of a post-service nature 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 her discharge at that time. 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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142 [formerly 3630605]. SEPARATION 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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