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NAVY | DRB | 2005_Navy | ND0500861
Original file (ND0500861.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-ATAA, USN
Docket No. ND05-00861

Applicant’s Request
The application for discharge review was received on 20050425. 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 discharge review before a traveling panel. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington National Capital Region. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.


Decision

A documentary discharge review was conducted in Washington, D.C. on 20051102. 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 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

 Applicant’s issues, as stated on the application:

“Dear Board Members,
I am writing you today with my faith in GOD that you will consider upgrading my discharge. I come from a broken home and dysfunctional family. I have been on my own since I was 15 years old made some mistakes but still managed to get a GED and join the Navy. While I was in I made it through boot camp became a aviation electronic technician working mainly on RADAR altimeter maintenance before being stationed in NAS JAX. While in your school I finished top in my class. Then I sailed around the world while aboard the USS JOHN C. STENNIS. I always had shined boots, pressed dungarees, pressed shirts, clean shave, and fresh haircuts. As far as on duty doing my job second to none at RADAR altimeter maintenance. However with less than a year left I made a huge mistake by letting a racial slur get to me without using my proper chain of command handle it. I have been out for a little over 6 years now and have not been in trouble with the law. However my discharge leaves a huge hole in my heart for something I did and has not allowed me to feel proud of what I accomplished by joining your navy and serving my country and protecting are way of life in the United States. Basically I didn’t know what I had till it was gone. Now as a civilian again working and struggling out here I wish I had some of the benefits and option to join again. It eats away at me since 9/11 that I cant. In conclusion board members I thank you for your time and would like the chance to make you as proud of me as I am of the navy.

Sincerely,
[signed]”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from S_ A. L_, State of New York Executive Department Division of Veteran’s Affairs dtd August 2, 2005
Copy of Applicant’s New York State Commercial Driver’s License

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19951130 – 19951219               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19951220             Date of Discharge: 19990303

 Length of Service (years, months, days):

         Active: 03 02 12
         Inactive: None

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

 Age at Entry: 19

Years Contracted: 4

Education Level: 11 (GED)                                   AFQT: 74

 Highest Rate: ATAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.0 (2)              Behavior: 3.0 (2)                 OTA: 3. 59

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy Unit Commendation, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon, National Defense Service Medal


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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-142.
Chronological Listing of Significant Service Events :

951130:  Enlistment waiver granted by CO, NRD Buffalo, NY for One Non-Minor Misdemeanor (Criminal Trespass 4 th degree).

960718:  NJP for violation of UCMJ, Article 92: Dereliction in the performance of duties.
         Violation of UCMJ, Article 92: Failure to obey a lawful order.
 Violation of UCMJ, Article 80: Attempts.
         Award: Forfeiture of $203 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.

970108:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of $203 per month for 1 month, restriction and extra duty for 14 days, reduction to E-1. No indication of appeal in the record.

990120:  NJP for violation of UCMJ, Article 112: Found drunk while on duty.
         Violation of UCMJ, Article 128: Assault.
         Award: Forfeiture of $532 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

990303:  Applicant discharged under other than honorable conditions by reason of misconduct due to the commission of a serious offense, administrative separation board waived. [Extracted from DD214]

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19990303 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 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 Board presumed regularity in the conduct of governmental affairs (E).

 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 three nonjudicial punishment proceedings for violations of Articles 80, 86, 92, 112 and 128 of the UCMJ. The Applicant’s violations of Articles 92, 112 and 128 are serious offenses. The Applicant’s conduct is a violation of the special consideration given the Applicant evidenced by the enlistment waiver granted on 19951130 for a non-minor misdemeanor for criminal trespass. 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 Applicant contends that he served honorably but, with less than a year left he “made a huge mistake by letting a racial slur get to [him].” 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. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for the commission of at least three serious offenses. Neither the evidence of record nor the documentation provided by the Applicant demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Relief 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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Relief denied.

Regarding the Applicant’s desire to reenlist: The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces. The NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION 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 an order/regulation, Article 92, willful dereliction of duty, Article 112, drunk on duty or Article 128, assault.

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 .

E. 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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