Author: CAP
Last saved by: Margaret L. Ryan
Company: NCPB

Docket No. ND99-00149

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

ex-FR, USN
Docket No. ND99-00149

Applicant’s Request

The application for discharge review, received 981102, requested that the characterization of service on the discharge be changed to General/under Honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991004.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned the characterization and reason for discharge were improper.  The Board’s vote was unanimous that the character and reason of the discharge shall change to:  UNDER HONORABLE CONDITIONS (GENERAL)/Secretary plenary authority:  NAVMILPERSMAN, Article 3630900.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  “When I was discharged from the Navy, it was because I did not complete daily 1 on AFFF stations, with my rank on board a ship I was at the bottom of the corporate ladder.  I was there specifically to do the work that no one else would do.  Most jobs I didn't mind doing but I didn't have time to do all work in a 24 hour day.  When I forgot to do the daily 1 one day, I was sent to captain's mast.  During captain's mast, I was asked if I wanted out of the Navy.  I said yes since they would not let me advance in my field.  When I got my discharge it was marked with other than honorable which I believe to be unfair to me.  I believe the worst I should have gotten was a general under honorable condition.  I believe that other than honorable conditions should only be given if during wartime not peace time like I recieved.  Thank you.”

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Privacy release statement from applicant to congressman dated June 1, 1998
Letter from Northern Michigan University, Director of Financial Aid dated May 29, 1998
Letter from Northern Michigan University, Professor, Aviation dated June 6, 1998
Letter from applicant's wife dated June 15, 1998
Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: USNR (DEP)	881223 - 881229	COG

Period of Service Under Review:

Date of Enlistment:  881230		Date of Discharge:  910109

Length of Service (years, months, days):

	Active:    02  00  10
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  65

Highest Rate:  FR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (3)	Behavior:  2.73 (3)		OTA:  2.33

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR 

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT – Commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

890104:	Applicant briefed on Navy's policy on drug and alcohol abuse.

890130:	Applicant disenrolled from submarine training school for fraudulent enlistment/undisclosed marijuana use.

890203:	Retention Warning:  Advised of deficiency (Undisclosed pre-service marijuana use.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
890826:	NJP for violation of UCMJ, Article 92:  Derelict in the performance of duties from 20AUG89 to 2100, 25AUG89, to wit:  Failed to conduct the daily PMS check on the AFFF system.
	Award:  Forfeiture of $349 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

900112:	NJP for violation of UCMJ, Article 92:  Derelict in duty from 1700, 3JAN90 to 0800, 4JAN90, to wit:  Failed to conduct the daily PMS check on the AFFF system.
	Award:  Correctional custody for 30 days.  No indication of appeal in the record.

900807:	Applicant volunteered for Level III treatment.

900905:	Applicant discharged from Level III treatment.  Discharge diagnoses:  1.  Alcohol dependence (treatment failure), 2.  Alcoholic hepatitis, 3.  Papillomatous skin lesion, left buttock.  Discharged to duty. 

900919:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from 0700-1037, 15 September 1990 (3 hours and 37 minutes).
	Award:  Restriction and extra duty for 45 days.  No indication of appeal in the record.

901130:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of Misconduct due to the Commission of a serious offense and Alcohol abuse rehabilitation failure.

901204:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to waive all rights except the right to a minimum of two working days to respond to the Notice of the Administrative Board Procedure Proposed Action.  Applicant did not object to separation.

901220:	Commanding officer recommended discharge under Other Than Honorable conditions by reason of Misconduct due to the Commission of a Serious Offense and Alcohol abuse rehabilitation failure. 

910102:	CNMPC directed the applicant's discharge under Other Than Honorable conditions by reason of Misconduct due to the Commission of a Serious Offense.

910109:	Applicant declined in-patient treatment for alcohol abuse through VA hospital.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 910109 under Other Than Honorable conditions for Misconduct due to Commission of a Serious Offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was improper and inequitable (D and E).

In the applicant’s issue 1, the Board found this issue to be without merit. Whether during peacetime or war, military members are required to obey the Articles of the UCMJ.  Any member who violates the UCMJ is subject to punishment in accordance with Navy regulations.

The applicant was discharged for commission of a serious offense, violation of UCMJ, Article 92 (derelict in performance of his duties).  Violation of UCMJ, Article 92, dereliction of duty, is only punitive if it is classified as willful, for which a military member can be discharged for commission of a serious offense.  The applicants charge sheets do not specify willful dereliction of duty, neither does the letter of notification of administrative separation from the Commanding Officer to the applicant.  However, the letter recommending administrative discharge from the applicant’s Commanding Officer to CNMPC specifically states and underlines, willful dereliction of duty, indicating the command was aware of the difference.  There is no indication that the applicant was ever notified that he was being charged with the more serious offense, which is a courts-martial offense.  Relief granted.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92:  Willful dereliction of duty, if adjudged at a Special or General Court-Martial.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX: A6730/A9453/A9217/A0108/A9456/A0101