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NAVY | DRB | 2006_Navy | ND0600954
Original file (ND0600954.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-STGSA, USN
Docket No. ND06-00954

Applicant ’s Request
The application for discharge review was received on 20060718 . 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 designated I_ S. A_ as his counsel/ representative on the DD Form 293.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20070510 . 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 U nder Other Than Honorable Conditions by reason of misconduct due to commission of a serious offense.



PART I - ISSUES AND DOCUMENTATION


Decisional Issues

Propriety – Due process
Equity – Post service conduct
The Applicant’s Counsel/Representative did not submit any decisional issues.
Documentation
In addition to the service and medical record s , the following additional documentation, submitted by the Applicant , was considered:
Applicant ’s DD Form 214 (2)
Character Reference ltr from J_ P_, Jr., Major General US Army (Retired), dated          December 6, 2004
Nineteen pages from Applicant ’s service record
Supervisor’s Performance Planning Worksheet, dated May 11, 2004
Employee’s Performance Planning Worksheet, dated May 11, 2004
Supervisor’s Performance Planning Worksheet, dated June 6, 2002
Employee’s Performance Planning Worksheet, dated June 6, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19870623 - 19880103       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19880104              Date of Discharge: 19920702

Length of Service (years, months, days):

          Active: 04 05 29
         Inactive: None

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

Age at Entry: 18
Years Contracted: 4 ( 24 -month extension)

Education Level: 12                                 AFQT: 82

Highest Rate: STG3

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3 . 1 ( 3 )                        Behavior: 3 . 2 ( 3 )                  OTA: 3.13

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None


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

UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct - commission of a serious offense , authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

910905:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: R estriction and extra duty for 15 days, reduction to E- 3 . No indication of appeal in the record.
910915:  Retention Warning: Advised of deficiency ( Unauthorized absence and subsequent dismissal from Fire-Fighting School , NAVSTA 32 nd Street, San Diego, CA. This incident punctuates a continuing trend of substandard and unacceptable performance in completion of assigned tasks as documented in Division Officer’s Notebook for the period 900807 through 910905 . ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
920421 :  NJP for violation of UCMJ, Article 92 : Failure to obey a lawful order.
         Award: R estriction and extra duty for 4 0 days, reduction to E- 2 . No indication of appeal in the record.
920526 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of a serious offense. [Extracted from Commanding Officer’s message dated 920526.]

920526 :  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights. [Extracted from USS GEORGE PHILIP message dated 950605.]

920526 :  Commanding Officer , USS GEORGE PHILIP recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

920605:  BUPERS message to USS GEORGE PHILIP. USS GEORGE PHILIP message dated 920526, request for administrative separation processing ICO STSGA M_ B. C_ (Applicant), held in abeyance. Applicant signed Statement of Awareness on 920102 which is prior to the Letter of Notification dated 920526. BUPERS instructs USS GEORGE PHILIP to re-execute Statement of Awareness.

920605:  USS GEORGE PHILIP message to BUPERS. Date of Statement of Awareness for administrative proceedings ICO STGSA M_B. C_ is corrected from 920102 to 920526.

920623 :  BUPERS directed the Applicant 's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.


Service Record contains a partial Administrative Discharge package.


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19920702 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). The Board presumed regularity in the conduct of governmental affairs (E).
Propriety – Due process: The Applicant contends that his discharge should be upgraded because he was not given the opportunity to appear before an administrative separation board.

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. The record contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or anyone involved in the administrative discharge process. On 19920526, the Applicant was notified of the Commanding Officer’s recommendation that the Applicant be administratively separated by reason of misconduct due to the commission of a serious offense. The Applicant was advised of the right to consult with counsel prior to making his decision to request or waive his rights. The Applicant chose not to consult with counsel and waived all his rights, including the right to appear before an administrative separation board. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. Relief denied.

Equity – Post service: The Applicant contends that since his discharge he matured and settled down.
The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 one letter of recommendation from his employer and 2 sets of Supervisor/Employee Performance Worksheets 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, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge. Therefore, no relief will be granted.

The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

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), effective 15 Aug 91 until
04 Mar 93, 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 92 (failure to obey a lawful order).

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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