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NAVY | DRB | 2005_Navy | ND0501402
Original file (ND0501402.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-SR, USN
Docket No. ND05-01402

Applicant’s Request
The application for discharge review was received on 20050825. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). 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 20060421. 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

 Applicant’s issues, as stated on the attached document/letter:

“Dear Members of the Board

 Please accept this letter as my plea for a change in discharge. While I must take responsibility for my actions, I would like you to consider a man with the desire can change. I never would have imagined my service would end the way it did. I joined the Navy for specific reasons and somehow lost my way. What I hope for now is that you will accept these statements as the truth and free me from the burden of an Other Than Honorable Discharge. Many years have passed, and I have done everything in my power to become the man I want to be. Maybe this type of discharge is what I needed in order to make some changes in my life, or maybe it has just come to me with time, Regardless of the reason, I am secure in the fact that I am becoming the man I have always wanted to be. Since my discharge, I have started and finished one college degree and am looking forward to finishing another. I live a stable life and have recently become engaged to my girlfriend of four years. It is my responsibility to provide a good life for my future wife and possible family which is why a change in discharge is necessary. My background includes extensive security training and my degree is in legal studies and in the future I would like to pursue a higher degree in criminal justice. It is unlikely that I will find employment in the field of law while still carrying this discharge. I cannot obtain a security license, nor can I obtain a P.O.S.T certification to become a police officer. These occupations are unforgiving to an individual who left the service in the manner that I did. I want to change that. I want to finish the things I have started, and achieve each and every one of my goals. As a show of my sincerity, I will re-enlist and give four years of the best military service that anyone could give. I owe the Navy, my shipmates, and my country that much. I have been lucky enough to learn and grow from my mistakes, and that’s why I know I will succeed as a sailor. Maybe, because I went through all this, I may even find myself in a position to help a younger shipmate find his/her way without struggling through the hardships I have endured. They say that action speaks louder than words and if you give me the opportunity, I will prove myself deserving. Thank you for reviewing this request. In today’s world of pressing events, I know your time is very valuable. I do hope you will conclude I have proven myself worthy of change in discharge.”
 “Sincerely, [signed] M_ D_ (Applicant)]

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Reference Letter from Ms. C_ T_, Instructor Sanford-Brown College, dtd June 25, 2004
Reference Letter from V_ H_, General Education Department Chair, Sanford-Brown College, dtd July 9, 2004
Applicant’s DD Form 214 (2)
Commanding Officer’s Recommendation for Separation dtd February 2, 1999 (2 pgs)
Administrative Separation Processing Notice-Administrative Board Procedure dtd February 2, 1999 (3 pgs)
Preliminary Inquiry Report dtd February 1, 1999
Report and Disposition of Offenses dtd February 1, 1999 (3 pgs)
Court Memorandum dtd February 1, 1999
Record of Unauthorized Absence dtd January 19, 1999
Voluntary Statement dtd February 2, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19980425 – 19980730               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19980731             Date of Discharge: 19990223

 Length of Service (years, months, days):

         Active: 00 06 23 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 2 days
         Confinement:              none

 Age at Entry: 21

 Years Contracted: 4

Education Level: 12                                 AFQT: 57

 Highest Rate: SR

 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): None.
* Not Available


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 :

981228:  Applicant to unauthorized absence at 0730 on 981228.

 981230:  Applicant apprehended by military authorities at 0330 on 981228, in San Diego, California, having been an authorized absentee from this command, over liberty since 1300, 981224. Unauthorized absence commenced 0730, 981228. Returned to military control on board USS ELLIOT (DD 967), San Diego, California, at 0330, 981230 (2 days/apprehended).

990125   Applicant to unauthorized absence at 0730 on 990125.
990125:  Applicant apprehended by military authorities at 1830 on 990125, Returned to military control on board USS ELLIOT (DD 967), San Diego, California (11 hours).
990201:  NJP for violation of UCMJ, Article 86 (2 specs): Absence without leave.
 Violation of UCMJ, Article 92: Failure to obey order or regulation.
Violation of UCMJ, Article 128: Assault consummated by a battery.
Violation of UCMJ, Article 134: Drunkeness.
Award: Forfeiture of $478 per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.
990202:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct commission of a serious offense (Article 128 – Assault consummated by a battery, and two specifications of Article 92 – Failure to obey other lawful order or regulation) [Extracted from case file].

990202:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to submit statements to the Administrative Board or to the Separation Authority in lieu of a board [Extracted from case file].

990202:  Commanding Officer, USS ELLIOT (DD-967) recommended discharge under other than honorable conditions by reason of misconduct commission of a serious offense. Commanding Officer’s comments: “SR D_ (Applicant) has been a burden to the Navy and this command throughout his term of service. His lack of desire to conform to Naval standards is evident considering the number of UCMJ Articles that he has violated in just over 2 short months of service on ELLIOT. I strongly recommend discharging SR D_ from Naval Service with an Other Than Honorable Characterization.”

990204:  GCMCA, COMNAVSURFPAC San Diego, CA 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 on 19990223 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).

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. T he Applicant’s service was marred by nonjudicial punishment proceedings for violations of Articles 86 (2 specs), 92 (2 specs), 128 and 134 of the UCMJ. Violations of Articles 92 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 NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided two letters of recommendation from his college professors as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge. Therefore, no relief will be granted.

The Applicant states that he cannot obtain certification to become a police officer because of his discharge characterization. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

For the information of the Applicant, 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. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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 128- assault consummated by battery, and Article 92 (2 specs) – failure to obey other lawful order or regulation.
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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