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NAVY | DRB | 2005_Navy | ND0500830
Original file (ND0500830.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY


ex-SA, USN
Docket No. ND05-00830

Applicant’s Request
The application for discharge review was received on 20050413. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region. The Applicant did not designate a representative on the DD Form 293. Subsequent to the application, the Applicant requested a documentary record discharge review in lieu of a personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 2006100 6 . 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 by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 No issues were submitted by the Applicant.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19910513 - 19910930      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19911001             Date of Discharge: 19931203

 Length of Service (years, months, days):

         Active: 02 01 29 (excludes lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 4 days
         Confinement:              None

 Age at Entry: 19

 Years Contracted: 4

 Education Level: 12                                 AFQT: 72

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.5 (2)                       Behavior: 2.4 (2)                 OTA: 3 .30

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Navy Battle “E” Ribbon


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

UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT , authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

911002:  Retention Warning: Advised of deficiency (D efective enlistment and induction due to fraudulent entry into naval service as evidenced by failure to disclose preservice civilian involvement/drug abuse .), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
920213:  NJP for violation of UCMJ, Article 121 (Larceny and wrongful appropriation) – Did at NSHS San Diego, Ca. on or about 25 December 1991 through 09 January 1992, steal a AT&T Card Number 891-253-848-0492-7, of a value 1,200.00, the property of Seaman Recruit E_ W_, U.S. Navy.
         Award: Forfeiture of $100.00 per month for 2 months, (suspended for six months), restriction and extra duty for 15 days. No indication of appeal in the record.

920213:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 121.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 930731:  NJP for violation of UCMJ, Article 121 and 107 (larceny and false official statement) on 30 Jul 93.
         Award: Forfeiture of $456.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

930731:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 121 and 107 Larceny and false official statement (on 30 July 1993) . ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930802:  Applicant informed retention warning (Page 13 administrative warning) dated 930731 was an unauthorized entry and that he is being processed for administrative separation.

 931008:  Applicant to unauthorized absence on 931008.
931012:  Applicant from unauthorized absence on 931012 (4 days).
931029:  NJP for violation of UCMJ, Article 86, UA, absent from unit USS FRANK CABLE from 8 to 12 October 1993.
 Violation of UCMJ, Article 92: Failure to obey a lawful order issued by MMCS J_ to “check in with his division/department before leaving the ship” on Friday, 8 October 1993.
          Award: Restriction and extra duty for 45 days. No indication of appeal in the record.

931109:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable by reason of misconduct due to commission of serious offenses as evidenced by nonjudicial punishments of 13 February 1992, 31 July 1993 and 29 October 1993.

931109:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
931109:  Commanding Officer, USS FRANK CABLE, recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offenses. Commanding Officer’s comments: “SA L_(Applicant) has had serious problems with misconduct. He has gone to mast on three occasions for larceny, false official statement and UA. He has been given numerous warnings to conform to the military. This conduct is not conducive to the safe and efficient operation of this ship. I strongly recommend that SA L_(Applicant) be expeditiously separated with an other than honorable discharge.”

931117:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged, in absentia, on 1993120 3 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than honorable conditions. 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).

The Applicant submitted no issues for consideration.

 When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. 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 was marred by two retention warnings and three nonjudicial punishment proceedings for violations of Articles 86, 92, 107 and 121 of the UCMJ. The Applicant’s violations of Articles 92, 107 and 121 of the UCMJ are serious offenses for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction at special or general court-martial. 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 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 post-service documentation for the Board to consider. Relief is not warranted.

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. 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 5, effective
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92, failure to obey order/regulation, Article 107, false official statement or Article 121, larceny.

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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