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NAVY | DRB | 2005_Navy | ND0501134
Original file (ND0501134.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-CTOSN, USN
Docket No. ND05-01134

Applicant’s Request
The application for discharge review was received on 20050629. The Applicant requests that his 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 designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051206. 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 character of the discharge shall not change. The discharge shall remain General (Under 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:

“At my discharge my CO, Captain C_ Was Very clear When he stated that at 6 months my discharge would be granted to turn into an honorable.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20011128 – 20020721               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20020722             Date of Discharge: 20041203

 Length of Service (years, months, days):

         Active: 02 04 13
         Inactive: None

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

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 64

 Highest Rate: CTOSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                  Behavior: NA*    OTA: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal
* Not Available


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

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

 Chronological Listing of Significant Service Events :

041013:  Applicant charged with violating UCMJ Article 92 (failure to obey order or regulation) for underage drinking, Article 111 (drunken driving) and Article 134 (disorderly conduct, drunkenness).
041104:  Administrative remarks: The accused gave up his right to demand trial by courts-martial in lieu of captain’s mast. The accused was advised that acceptance of non-judicial punishment does not preclude further administrative action.

041109:  NJP for violation of UCMJ, Article 92 (failure to obey an order or regulation); Article 111 (drunk driving).
         Award: Extra duty for 30 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.
041119:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

041119:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all right.

041122:  Commander, Navy Computer Incident Response Team, granted authority to Officer in Charge, Personnel Support Activity Detachment Little Creek, to discharge Applicant with a general (under honorable conditions) by reason of commission of a serious offense.

041213:  Commander, Navy Computer Incident Response Team, advised Commander, Navy Personnel Command, of Applicant’s discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense. Commanding Officer’s comments: “Seaman J_ (Applicant) has failed to follow orders and is consistently irresponsible. Despite continuous command attention, his performance has steadily declined. Seaman J_ (Applicant) has been given ample opportunity, tools and guidance to correct noted performance deficiencies; however, his actions do not demonstrate a commitment to Navy Core Values. Seaman J_ shall be separated from the Naval service with a characterization of service of General Under Honorable Conditions.”

Service record was missing elements of the summary of service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20041203 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 all available 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 met the standard of acceptable conduct and performance, it is appropriate to characterize that service as honorable. A general (under 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 nonjudicial punishment (NJP) for violations of the UCMJ Article 92 (failure to obey) and Article 111 (drunk driving). Each violation of Article 92 and 111 is defined by reference (A) as the commission of a serious offense, the misconduct for which the Applicant was discharged. There is credible evidence in the record that the Applicant committed a serious offense. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Separation under these conditions generally results in a service characterization of less than honorable. Relief denied.

The Applicant stated that he was told his characterization of service would turn into honorable six months after his discharge. There is no law or regulation that authorizes a discharge to be automatically upgraded after six months. A former service member has 15 years, from the date of discharge, to request that his or her discharge be reviewed based upon the issues of impropriety and/or inequity. In addition, 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. The Board does not automatically upgrade a discharge after six months and the Applicant provided no post service documentation for the Board’s consideration. 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 his 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), re-issued October 2002, effective 22 Aug 02 until 25 April 2005, 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 or regulation) and Article 111 (drunken driving).

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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