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Docket No. ND03-01466

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

ex-FCSN, USN
Docket No. ND03-01466

Applicant’s Request

The application for discharge review was received on 20030910.  The Applicant requests the 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812.  After a thorough review of the available 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)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “THE FOLLOWING ISSUES ARE THE REASONS I BELIEVE MY DISCHARGE SHOULD BE UPGRADED TO HONORABLE.  IF YOU DISAGREE, PLEASE RESPOND IN WRITING EXPLAINING IN DETAIL WHY YOU DISAGREE.  NORMALLY YOU MIGHT ASSUME THAT THE COMMAND ACTED CORRECTLY IN CHARACTERIZING MY SERVICE AS LESS THAN HONORABLE.  THIS DOES NOT APPLY TO MY CASE, BECAUSE OF THE EVIDENCE I’M SUBMITTING.  DURING MY THREE YEARS AND 5 MONTHS OF LOYAL SERVICE, MY CONDUCT, EFFICIENCY, AND WORK PERFORMANCE MARKS WERE WELL ABOVE AVERAGE!  I RECEIVED NUMEROUS AWARDS AND PRAISES, ALONG WITH BEING SELECTED FOR JUNIOR SAILOR OF THE QUARTER.  I EARNED A GOOD CONDUCT MEDAL WHILE DEPLOYED IN THE PERSIAN GULF IN 1998.  I TOOK PRIDE IN MY DUTIES AND MY APPEARANCE.  MY RECORD SHOWS I WAS AMBITIOUS, DEPENDABLE, AND A TEAM PLAYER.  THERE ARE NO SIGNS OF DISOBEDIENT BEHAVIOR, POOR JUDGMENT, OR POOR WORK PERFORMANCE IN MY RECORDS.  YET, I RECEIVED A DISCHARGE AS IF I WENT AWOL, OR MY SERVICE WAS UNAPPRECIATED.  MY POOREST JUDGMENT WAS DECLINING THE VACCINE.  I WOULD HAVE TAKEN IT, HAD I BEEN PROVIDED THE DOCUMENTATION PERTAINING TO SIDE EFFECTS AND CONCEPTION.  AT THAT TIME, THE ANTRAX VACCINATION WAS NOT MANDATORY IN THE NAVY BUT JUST IN MY COMMAND.

Documentation

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

Copy of DD Form 214
Enlisted Performance Evaluations [6 pages]
Citation frm Commander Eisenhower Battle Group
Copy of DD Form 215
Transcipt printouts [2 pages]
Ltr from J_A_, Georgia Military College, dtd 30 Jul 03
Ltr from P_B_, Georgia Military College, dtd 4 Jun 03
Ltr from P_B_, Georgia Military College, dtd 3 Mar 03
Employer Reference dtd 3 Aug 00
Employer Reference dtd 25 Jul 00

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	950524 - 950725	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  950726		Date of Discharge:  990112

Length of Service (years, months, days):

	Active:    03  05  17
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 [24 mo ext]

Education Level:  12			AFQT:  76

Highest Rate:  FCSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.66 (3)	Behavior:  3.66 (3)		OTA:  3.42

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, NDSM, AFEM

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:

981113:	NJP for violation of UCMJ, Article 90:  Willfully disobey lawful command of a commissioned officer.
	Award:  Forfeiture of $519 per month for 2 month(s), restriction and extra duty for 60 days, reduction.  No indication of appeal in the record.

Complete discharge package not available in records.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was given a General (Under Honorable Conditions) discharge on 19990112 for misconduct due to commission of a serious offense (A & B).  In the absence of a complete discharge package, the Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.   The Applicant states that during her “three years and 5 months” of service she served the Navy well.   Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  A General discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by nonjudicial punishment proceedings for a violation of Article 90 of the UCMJ for disobeying the command of a commissioned officer. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service.  Relief is not warranted.

NDRB review is limited to a determination as to whether the member’s case was procedurally correct, and whether the case received the same disposition as those similarly situated.  In your case, the NDRB found that your case was processed in accordance with established procedure and that your discharge was equitable.  In this regard, a characterization of service of general (under honorable conditions) was warranted since your record of service constituted a departure from that expected of a Sailor in the U.S. Navy.  The evidence of record does not demonstrate the Applicant was not responsible for her actions or should not be held accountable.  The award of NJP was proper and equitable; and upgrade to honorable would be inappropriate.  Relief is denied.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  Therefore, relief is denied.

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 other evidence related to her 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 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 90, for willfully disobeying a lawful order of a superior commissioned officer, 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 view DoD Directive 1332.28 and other Decisional Documents by going online at "afls14.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.