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Docket No. ND01-00385

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

 ex-MMFR, USN
Docket No. ND01-00385

Applicant’s Request

The application for discharge review, received 010207, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review.  The applicant listed the American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 020418.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an inequity existed in the applicant’s discharge.  The Board’s vote was unanimous that the character of the discharge shall change.  The discharge shall change to: HONORABLE/Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  (Equity Issue)  This former member opines that her post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

Documentation

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

American Legion statement, 18 April 2002
Packet from applicant, 18 April 2002

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	930220 - 930622	COG

Period of Service Under Review:

Date of Enlistment:  930623		Date of Discharge:  950131

Length of Service (years, months, days):

	Active:    01  07  09
	Inactive:  None

Age at Entry:  30			Years Contracted:  4

Education Level:  12			AFQT:  52

Highest Rate:  MMFA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)	Behavior:  1.00 (1)		OTA:  2.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM 

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

941230:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order on 22Dec94.
	Award: Forfeiture of $416 per month for 2 months, restriction for 60 days, reduction to MMFR.  Forfeiture suspended.  No indication of appeal in the record.
941230:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

941231:  	Applicant advised of her 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.

950103:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding officer’s comments (verbatim): MMFR (applicant) violated and refuses to comply with the Navy's policy on fraternization.  She was warned at Captain's call on numerous occasions that the Navy's fraternization policy would be enforced and not to cross the bounds of professional relationships with other crew members.  Her conduct has been prejudicial to good order and discipline and has undermined a healthy command climate in CIMARRON.  FR (applicant) is a 32 year old adult who is fully accountable and comply with the Navy's fraternization policy.  MMFR (applicant) has not been onboard CIMARRON long enough to receive a periodic performance evaluation.  Her professional performance is characterized with numerous formal counseling chits and countless informal counseling sessions.  If a performance eval was to be submitted on her today it would place her as a 2.8 to 3.0 sailor overall with grades scattered from 2.6 to 3.4.  Recommend SNM be separated with characterization of service as other than honorable.

950106:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

990830:	NDRB documentary record review Docket Number ND98-01200 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 950131 under other than 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 improper (C and D).

Issue 1.   The Board found that an inequity existed in the fact that the applicant was involuntary separated for the commission of a serious offense, which consisted of the applicant, then an E-2, and a male E-4 staying in the same room overnight in a hotel while on liberty in Hong Kong.  The Board determined that involuntarily separating an enlisted member for fraternizing with another enlisted member not in her chain of command is inconsistent with standards of discipline in the naval service [B].  Additionally, after consideration of the applicant’s post-service conduct, the Board found the sum of all factors sufficient to warrant an upgrade of her discharge to Honorable.  Relief is granted.

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.  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.

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 "afls10.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
 		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  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/A9222