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NAVY | DRB | 2005_Navy | ND0501557
Original file (ND0501557.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-AKAA, USN
Docket No. ND05-01557

Applicant’s Request
The application for discharge review was received on 20050923. 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 personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. The Applicant designated a congresswoman as the representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. In the acknowledgement letter to the Applicant was informed that members of Congress do not represent Applicants before the Board and that written authorization must be obtained from that Congressman. Such authorization was not received; therefore the case was reviewed without representation.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060717. 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 a pattern of misconduct .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“I am requesting a change in my re-enlistment code, in order to re-enlist into the US Army. I wish to serve and honor my country in this time of need. I deeply regret my personnel actions of misconduct while serving in the US Navy between 1993 to 1998, due to immaturity.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Commendation certificate for October 1997 to January 1998 (2)
Applicant’s DD Form 214
Letter from Congress of the United States, dtd September 27, 2005
Character Reference ltr from E_ B_, Division Manager and C_ D_, General Superintendent, Arizona Pipeline Company, dtd September 20, 2005 (2)
Character Reference ltr from J_ E_, VFC President, Highgrove Volunteer Fire Department, dtd September 24, 2005 (2)
Statement from Applicant, dtd January 20, 2006
Letter to Applicant from Congress of the United States, dtd September 14, 2005
Letter to Applicant from Congress of the United States, dtd November 1, 2005
Letter to Congresswoman D_ O. M_ from Applicant, dtd September 12, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19920505 - 19930125      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19930126             Date of Discharge: 19980528

 Length of Service (years, months, days):

         Active: 05 04 03 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 5 days
         Confinement:              None

 Age at Entry: 19

 Years Contracted: 4 (25 month extension)

 Education Level: 12                                 AFQT: 66

 Highest Rate: AKAN

 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): Armed Forces Expeditionary Medal, National Defense Service Medal.
* Not Available


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

UNDER OTHER THAN HONORABLE CONDITIONS/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

940617:  NJP for violation of UCMJ, Article 86: (Unauthorized absence) 940527.
 Violation of UCMJ, Article 107: (False official statement) 940531.
          Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 10 days. No indication of appeal in the record.

940715:  NJP for violation of UCMJ, Article 86: (Unauthorized absence) 940615.
 Violation of UCMJ, Article 86: (Unauthorized absence) 940714.
          Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.

950731:  Report of Medical Board. Diagnosis: Anterior cruciate ligament deficient right knee, status post reconstruction of right knee performed four months ago, did not exist prior to enlistment.

950817:  Applicant informed of medical board’s recommendation of referral to BUPERS for departmental review recommending a third period of limited duty for 6 months to expire 27 January 1996.

950927:  Recommendation for medical board and limited duty for Applicant is approved.

960307:  Re-evaluation for a limited duty board (enlisted) and Applicant was found fit for full duty.

970314:  NJP for violation of UCMJ, Article 128: Assault consummated by battery.
 Violation of UCMJ, Article 134: Disorderly conduct.
          Award: Forfeiture of $900 per month for 2 months, restriction and extra duty for 15 days. No indication of appeal in the record.

970324:  Applicant referred to medical officer due to civil arrest for public intoxication/battery consummating assault (28 Feb/no BAC given). Applicant did not meet criteria for DSM IV dependency but met criteria for alcohol abuse. Use caused legal problems. Plan/Recommendation: Alcohol impact.

 980406:  Applicant to unauthorized absence at 0645 on 980406.

980406:  Applicant missed ship’s movement.

 980409:  Applicant from unauthorized absence at 1410 on 980409 (4 days/surrendered).
980502:  Applicant to unauthorized absence at 1830 on 980502.

 980504:  Applicant from unauthorized absence at 0615 on 980504 (1 days/surrendered).
980506:  NJP for violation of UCMJ, Article 86 (2 specs): UA on 98Apr06 to 98Apr09 and 98May02 to 98May04.
 Violation of UCMJ, Article 87: Missing movement on 98Apr06.
          Award: Forfeiture of $519 per month for 2 months (suspended 2 nd month for 6 months), restriction and extra duty for 45 days (suspended for 6 months, reduction to E-2. No indication of appeal in the record.

980528:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct, authority: MILPERSMAN, Article 1910-140.

980529:  Applicant found fit for release from active duty/discharge.

Service Record did not contain the Administrative Discharge package.
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 19980528 by reason of misconduct due to a pattern of misconduct (A) 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 (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

 In the absence of a complete summary of service, the Board presumed that, in accordance with Reference A, the Applicant violated a NAVPERS 1070/613 warning prior to processing. The Board also presumed that the Applicant was properly notified, processed, and discharged in accordance with MILPERSMAN 1910-140 (formerly 3630600). The Applicant bears the burden of overcoming this presumption of regularity by presenting any substantial and credible evidence. The Applicant did not provide any documentary evidence to challenge the propriety or equity of the discharge. Therefore, the Board considered the Applicant’s discharge proper and equitable. Relief not warranted.

The Applicant contends that his discharge was inequitable because of his immaturity at the time of service. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. Most servicemembers begin their service at a relatively young age. It must be noted that despite their relative youth and immaturity, the vast majority of these members of the Navy still serve honorably and therefore earn their honorable discharges. In fairness to those members, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

The Applicant is advised that the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces and therefore does not have the authority to make changes to the Reentry Code. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Since this issue does not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

While 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 service, the Board 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. The Applicant submitted two character references for consideration. The Applicant’s efforts need to be more encompassing to include evidence of continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities. At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge. And so, no relief is granted on this basis.

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 post-service accomplishments or any other evidence related to the 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), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

D. 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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