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NAVY | DRB | 2005_Navy | ND0500966
Original file (ND0500966.rtf) Auto-classification: Denied


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

ex-AOAR, USNR
Docket No. ND05-00966

Applicant’s Request
The application for discharge review was received on 20050518. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051006. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“I am respectfully requesting and praying that you grant me a change in my discharge status from General (Under Honorable Conditions), to an Honorable Discharge as well as, the expunction of the Re-R4 code from my Form DD 214. I feel as though i served my coutry with great pride and ambassadorship. However, due to a host of bad decisions I made as a young man, I’ve had to suffer with the personal burden of feeling as though I had a failed Military Career. By upgrading my discharge Honorable, not only would my dignity be restored, but this would also help reconcile my auspicious military career thereby proving there is a such thing as “Second Chances”.”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

 “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General Under Honorable Conditions discharge to that of Honorable, and a change of the RE-4 code from his DD214.

The FSM served on active service from July 6, 1990 to July 13, 1993 at which time he was discharged due to misconduct (serious offense).

The FSM states that he feels that he served his country with great pride and ambassadorship. But for a host of bad decisions made during that service, he has suffered the personal burden of a failed military career. By upgrading the discharge his dignity would be restored, and would help reconcile an auspicious military career, thereby proving there is such a thing as “second chances”.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.”
Applicant’s Remarks: “I Thank you for taking this opportunity to review my file…I hope that in your infinite wisdom, that you find it possible to change my discharge and give me the closure I need from this chapter in my life.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from Applicant, undated
Letter of Recommendation from Senator R__ R. H___, dtd June 7, 2005
Employment Reference Letter from R___ A__, JR, undated
Pre-Employment Background Screening, completed May 20, 2005 (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 890828               Date of Discharge: 930713

 Length of Service (years, months, days):

         Active: 03 00 08
         Inactive: 00 10 09

 Age at Entry: 17                          Years Contracted: 8

Education Level: 12                        AFQT: 32

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (2)             Behavior: 2.80 (2)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, SASM with bronze star, LOA

Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

900706:  Ordered to active duty for 36 months under the Active Mariner program.

 910930:  NJP for violation of UCMJ, Article 128: Assault.
         Award: Forfeiture of $376.00 pay per month for 2 months, restriction to NAS Whidbey Island for 30 days, reduction in rate (suspended for 90 days). No indication of appeal in the record.

911007:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 128: Assault), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
921204:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 91: Disobeyed a lawful order from a Second Class Petty Officer on 921128.
Charge II: violation of the UCMJ, Article 117: Provoking words toward a First Class Petty Officer on 921128.
Charge III: violation of the UCMJ, Article 128: Assault a First Class Petty Officer on 921128.
         Finding: to Charge I and the specifications 1 and 2 thereunder, guilty. To Charge II and the specification thereunder, guilty. To Charge III and the specification thereunder, guilty.
         Sentence: Confinement for 10 days, restriction for 25 days, forfeiture of $587.00 pay per month for 1 month, reduced to E-2.
         CA action 921214: Sentence approved and ordered executed.

930604:  CAAC, NAS Whidbey, Island Drug and Alcohol Evaluation indicates applicant was referred by AMSC(AW) K___ due to an on base DWI (BAC.13) on 21 May 1993. He arrived at 0750 and was returned command at 1000 following satisfactory performance in the evaluation. AOAA O___ appears dependent on alcohol as evidenced by: Use interferes with responsibilities and safety, increased tolerance, blackouts, withdrawals, loss of control, inability to abstain, unsuccessful efforts to control use, excessive time involvement, lifestyle changes due to use and uses knowing it causes other problems. AOAA O___ admit to binging and craving alcohol and to selling his possessions in order to buy alcohol. He described a drinking history which began at age of 18 after joining the Navy. He revealed two events prior to the presenting incident that were alcohol related, but apparently did not warrant a screening; charges of females in his BEQ room with allegation of rape and an assault charge resulting in a summary court martial. He states he was counseled by his Division Officer about his drinking. He is highly motivated for treatment, but is unwilling to extend for 12 months to meet aftercare requirements. It is recommended AOAA O___ be handled administratively and discharge via VA. It is also recommended he be placed into an interim program consisting of a Medical Officer’s evaluation and attend three AA meeting per week.

930608:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order/regulation: driving a motor vehicle while under the influence of alcohol, wrongfully consuming alcohol as a minor.
         Award: Forfeiture of $467.00 pay per month for 2 months, reduction to E-1. No indication of appeal in the record.
930622:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense as evidenced by the Applicant’s enlisted service record.
930623:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
930702:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense, and by a vote of 1 to 2, found that the Applicant had not committed misconduct due to a pattern of misconduct. The Boards vote was unanimous that the Applicant’s misconduct warranted separation and recommended the Applicant’s general under honorable conditions discharge.

930706:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense. Commanding Officer’s comments: “I strongly recommend separating [Applicant] from the U.S. Naval Service with a discharge characterization of Under Other Than Honorable condition. The service member has a pattern of misconduct, as evidenced by his service record, that does not support an Honorable or General discharge. He has two military convictions for assaults, one for provoking words, and three convictions for violating Lawful Orders. This pattern of Conduct is unacceptable; I strongly recommend that he receive an Other Than Honorable discharge.”

930708:  BUPERS directed the Applicant's general (under honorable conditions) discharge 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 19930713 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under 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).

 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 or general 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 a retention warning, two nonjudicial punishment proceedings and a summary court-martial for violations of Articles 91, 92, 117 and 128 of the UCMJ. The record also shows the Applicant violated Article 111 by driving while under the influence of alcohol that was not adjudicated by captain’s mast. The Applicant’s violations of Articles 91, 92, 111 and 128 are considered serious offenses. 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 with “great pride and ambassadorship” and that he made mistakes as a “young man.” The record reflects the Applicant’s misconduct, which included multiple offenses of the UCMJ that are considered serious offenses. While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

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. Relief denied.

Regarding reenlistment and re-codes, the following is provided for the edification of the Applicant: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, 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 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. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 91, disobey a lawful order, Article 92, failure to obey an order/regulation, Article 111, drunken driving and Article 128, assault, if adjudged at a Special or General Court-Martial.

 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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