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

ex-FR, USN
Docket No. ND99-00409

Applicant’s Request

The application for discharge review, received 990129, requested that the characterization of service on the discharge be changed to honorable.  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 991206.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned that while the discharge was proper the characterization of the applicant’s service was inequitable.  The Board’s vote was unanimous that the discharge shall change to ENTRY LEVEL SEPARATION/SECRETARIAL AUTHORITY, authority: the Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 until PRESENT, Article 1910-164 (formerly 3630900), Separation by Reason of Best Interest of the Service (BIOTS).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My General/Under Honorable Conditions Discharge to be upgraded to Honorable.  After a personal incident that occured, I was informed that it would not result in a discharge and then approximately 30 days later, I was discharged.

2.  Prior to my discharge I had applied for a compassionate reassignment, but was unjustly denied.  I had taken proper measures in following my chain of command to transfer to another field, and I received no assistance in my attempts.

Documentation

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

Copy of DD Form 214
Three statements from applicant dated May 5, 1998 (2) and January 26, 1999
Character reference dated September 16, 1998
Character reference dated September 30, 1998
Character reference dated September 30, 1998
Character reference dated August 7, 1998
Character reference dated June 4, 1998
Character reference dated October 6, 1998
Character reference dated August 10, 1998
Character reference dated October 1, 1998
Character reference dated August 18, 1998
Character reference dated January 6, 1999
Character reference dated September 30 and October 5, 1998

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	970517 - 971029	COG

Period of Service Under Review:

Date of Enlistment:  971030		Date of Discharge:  980415

Length of Service (years, months, days):

	Active:    00  05  16
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  91

Highest Rate:  FR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

980304:	NJP for violation of UCMJ, Article 86:  Failure to go at time prescribed to appointed place of duty on 2200, 22Feb98 to 0515, 23Feb98 97 hours and 15 minutes, violation of UCMJ Article 92: Violate a lawful order, by wrongfully attending the Firestone Club, an off-limits establishment on 22Feb98
	Award:  Forfeiture of $100 per month for 1 month, restriction for 14 days, oral admonition.  No indication of appeal in the record.

980310:	Applicant at Winter Park Psych Care after overdose NoDoz.

980313:	Psychiatric care: Diagnostic impression: Occupational problem.

980320:	Winter Park Memorial Hospital:  Psychiatric:  Diagnostic Impression: Adjustment reaction with mixed disturbances of emotions and conduct.

980326:	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 entry level performance and conduct.

980326:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

980327:	Commanding officer directed discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense and entry level performance and conduct.  Commanding officer’s comments (verbatim): FR (applicant) has no potential for further service.  He has been under psychiatric care since 13 March 1998.  Staff psychologist recommended he be separated from military service by reason of failure to adapt, which makes him unsuitable for further service.  However, after careful consideration of his offenses under the UCMJ, FR (applicant's) General discharge is approved per reference (a).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980415 general (under honorable conditions) for misconduct due to commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper but not equitable (C and D).

On March 4, 1998, the applicant was found guilty at Captains Mast of Article 92, failure to obey a lawful order, and Article 86, failure to go at time prescribed to appointed place of duty, both for going to an off-limits establishment in Orlando, FL.  The Board found that while the discharge was technically proper, it was not equitable due to the stigma associated with the commission of a serious offense.  The Board stated that while any violation of the UCMJ is serious, discharging a member for the above “serious offense” fails to meet the common sense equity issue.  Furthermore, looking at the timeline of events, it was evident to the Board that the commanding officer did not consider this violation of the UCMJ serious enough to discharge the applicant until the applicant started having psychological problems associated with stress at Nuclear Power School.  It is also noted that the applicant had served for less than 180 days and was being processed for entry level performance and conduct.  Per (E), a member must have violated a NAVPERS 1070/613 counseling/warning.  The applicant was never counseled nor given time to improve his performance..  The Board did not feel that the applicant deserved an Honorable discharge based on his time in service, therefore the discharge will be changed to ENTRY LEVEL SEPARATION and the narrative reason as SECRETARIAL AUTHORITY (F).

Pertinent Regulation/Law (at time of discharge)
A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until Present, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.

B.  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.  

C.  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.

D.  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.

E.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until PRESENT, Article 1910-154 (Previously 3630200), Separation by Reason of Entry Level Performance and Conduct.

F.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 until PRESENT, Article 1910-164 (formerly 3630900), Separation by Reason of Best Interest of the Service (BIOTS)

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