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NAVY | DRB | 2006_Navy | ND0600157
Original file (ND0600157.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-SA, USNR
Docket No. ND06-00157

Applicant’s Request
The application for discharge review was received on 20051101 . The Applicant requests the Discharge 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 20060926 . 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) 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:

“ When I was discharged from the U.S. Navy, I received a general under honorable conditions discharge. The chief of legal stated to me that the discharge would not hinder on any job that I would apply for as a civilian. I am currently employed by the federal bureau of prisons in which I needed a waver from Washington D.C. for employment. I recently wanted to join the Army reserve to defend my country as I did in the Navy, I was told that I was ineligible due to my discharge. I then went to the Air national guard they also stated that I was not qualified due to my discharge. I have contacted the board of corrections and the stated that they would not up grade my discharge. Since my discharge from the Navy I worked for the City of New York Fire Department as an Emergency Medical Technician fro 12/2000 to 3/2004. I also needed a waver for that job. In my spare time I have been a volunteer firefighter for the past 15 years. I haven’t been in trouble with law enforcement since my discharge. I was a very young kid when I entered the N avy, I would not give up one day I served. I am third generation Navy, I tried to serve proud. I would like to have the chance to reenter the armed forces as a reservist with the Air National Guard near my home. If I could enter the Navy to work out the rest of my enlistment which would be one year 1 month I would if it give an honorable discharge. In all I feel that I was mislead when I was given the discharge paper work that stated my discharge would not stop me from getting any job s . ”
Applicant’s Remarks: (Taken from the DD Form 293) : “I would like to meet with the board but due to my job at the prison it would be hard for me to take the time off. I thank you for your time and consideration.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
 Letter of Commendation, from Captain, T_ J. B_, dtd August 18, 1997
 Certificate of Merit dtd May 25, 2001
FDNY/ESM Division One Certificate of Accomplishments dtd May 18, 2003
Emergency Medical Service Academy Certificate of Completion dtd January 29, 2001
 State of New York Fire Training Certificate dtd June 1, 2001
 Emergency Response to Terrorism Certificate of Training dtd January 14, 2002

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: 940330                Date of Discharge: 19960709

Length of Service (years, months, days):

          Active: 0 1 1 0 25
         Inactive: 00 04 16

Time Lost During This Period (days):

         Unauthorized absence: none
         Confinement:              none

Age at Entry: 1 9

Years Contracted: 8

Education Level: 12                                 AFQT: 32

Highest Rate: SA

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, Oversea s Service Ribbon, Army Achievement Medal .

* Not Available


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

GENERAL ( UNDER HONORABLE CONDITIONS ) /MISCONDUCT, authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

940815 :  Commenced active duty for a period of 36 months.
9 6 0215:  NJP for violation of UCMJ, Article 128: Assault.
 Violation of UCMJ, Article 134: Drunk and disorderly.
         Award: Forfeiture of $100.00 per month for 2 months, restriction to NCTAMS for 45 days, extra duty for 45 days. No indication of appeal in the record.
96022 1 :  Retention Warning: Advised of deficiency ( Personality disorder with borderline dependent traits as evidenced by abusive alcohol use resulting in nonjudicial punishment on 15 February 1996, where applicant were convicted for a violation of Article 128, UCMJ, Assault, and Article 134, UCMJ, drunk and disorderly conduct .), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
960412:  Applicant arrested by local authorities for drunk and disorderly, and resisting arrest. Charges dropped by local Attorney General’s office.
          [Extracted from Commanding Officer’s letter dated 960617.]

960612 :  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 as evidenced by your conviction at nonjudicial punishment on 15 February 1996 for Article 128, UCMJ, Assault, and Article 134, UCMJ, Drunk and Disorderly .

 undated :         Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation .
960617 :  Commanding Officer, U.S. Naval Computer and Telecommunications Area Master Station WESTPAC Guam , directed discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense as evidenced by conviction at nonjudicial punishment on 15 February 1996 for Article 128, UCMJ, Assault, and Article 134, UCMJ, Drunk and Disorderly. Commanding Officer’s comments : “ SA G_ (Applicant) is a capable worker. However, his continued minor infractions make him incompatible for further service. Therefore, by authority granted to me by references (a) and (b), SA G_ (Applicant) will be discharged f rom the Naval Service .”
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 19960709 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 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).
The Applicant implies that his discharge was inequitable because of his youth and 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. There is irrefutable evidence that the Applicant’s conduct during his time in the Navy was not honorable. Indeed, the Applicant’s records contain:
•         Non-judicial punishment proceedings on 19960215 for violation of UCMJ Article 128 Assault and Article 134 Drunk and Disorderly;
•         Retention warning entry on 19960220 for deficiencies in performance and conduct; and a
•         Report of arrest by local authorities for drunk and disorderly and resisting arrest.
 Violation of Article 1 28 is a serious offense for which a punitive discharge is authorized under Appendix 12 of the Manual for Courts-Martial (B) and typically warrants a characterization of service as under other than honorable conditions. The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an honorable characterization of service. An upgrade to honorable would be inappropriate; therefore relief is denied.

The Applicant is advised that the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces. 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 these issues do 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 a letter of commendation and five certificates for consideration. The Applicant’s efforts need to be more encompassing to include evidence of continuing educational pursuits, verifiable employment records, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle. 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 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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.

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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