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NAVY | DRB | 1997_Navy | ND97-01220
Original file (ND97-01220.rtf) Auto-classification: Denied


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

ex-ETSN, USN
Docket No. ND97-01220

Applicant’s Request
The application for discharge review, received 970801, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing discharge review, and did not list a representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 981123. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. 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 3630600.

THE FINDING FOR MISCONDUCT IS EFFECTIVE FOR 940722 - 961002. ONLY.

SPN CODE HKQ EFFECTIVE 930628 - PRESENT . A general discharge is written “GENERAL (UNDER HONORABLE CONDITIONS)”.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. Change General Under Honorable Conditions Discharge because I believe this was unjust punishment for someone with an otherwise clean record.

2. Change RE 4 code so reenlistment is possible because I don't believe this to be proper punishment for someone with one offense on their military record.

3. Retain rank of pay grade E-4 because of time served in the brig for charges brought up against me.

4. Change of discharge and RE code because I was unjustly sent to Court Martial instead of Captain's mast.

5. I would like to be reimbursed for the money taken out of my 95 Federal Taxes. Cleveland Allotment Center took the money because they believe my pay grade was reduced to E-2 and I was paid as an E-3 while serving my time in the brig. In fact, I recieved no pay at all. My pay was forfeited for those 30 days.

6. I would like to be eligible for my GI Bill, Va loan, and Veterans Benefits because I did serve my country for 4 years and I'm a veteran of the 2n d Desert Air Strike and Operation Restore Hope.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Four page statement from applicant
Copy of NAVPERS 4650/22
Copy of DD Form 214 (Member 1 and 4)
Copy General Discharge certificate dated 18 November 1994
Copy of Board of Correction of Naval Records decision.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     901009 - 901226  COG

 Period of Service Under Review :
Date of Enlistment: 901227               Date of Discharge: 941118

 Length of Service (years, months, days):

         Active: 03 09 28
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (24 month extension)

 Education Level: 12                        AFQT: 92

 Highest Rate: ET3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.70 (2)    Behavior: 3.70 (2)                OTA: 3.67

 Military Decorations: None

 Unit/Campaign/Service Awards: JMU, MUC, NDSM, AFEM, SASM

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

941017:  Summary Court-Martial:
         Violation of UCMJ, Article 91 (2 Specs): (1) Disobeying a lawful order from a Chief Petty Officer on or about 4 October 1994, to wit: not filling distilled water containers with distilled water; (2) Disobeying a lawful order from a First Class Petty Officer on or about 5 October 1994, to wit: not filling distilled water containers with distilled water; and violation of UCMJ, Article 107: Made a false official statement on or about 5 October 1994, to wit: I filled the distilled water containers with distilled water.
         Sentence: Confinement for 30 days, forfeiture of $619 per month for 1 month, reduction to ETSN.
         CA (941021) approved and ordered executed.
941020:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your Summary Court-Martial conviction of 17 October 1994 for violation of the UCMJ, Articles 91 and 107. Receipt acknowledged.
941022:          Applicant advised of his rights and, having consulted 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. Applicant did not object to the separation.
941024:  Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. Commanding officer’s comments (verbatim): ETSA B_’s misconduct is detrimental to good order and discipline. He possesses no potential for continued service and has no desire to continue his military service. Accordingly, I strongly recommend that ETSA B_ be administratively discharged from the Naval Service by reason of misconduct due to commission of a serious offense. ETSA B_’s service has been honest and faithful for the last four years. However, the misconduct for which he is being processed outweighs the positive aspects of his service record. I therefore recommend the characterization of his discharge be general under honorable conditions.

941102:  BUPERS directed the applicant's discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 941118 general (under 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 proper and equitable (D and E).

In the applicant’s issue 1, the Board found that while there were positive factors in the applicant’s enlistment, his record of misconduct overshadows his otherwise good performance, and in keeping with BUPERS guidance, he was awarded a General (Under Honorable Conditions) discharge.

In the applicant’s issues 2, the Board has no authority to change reenlistment codes or make recommendations to permit reentry into the Naval Service or any other of the Armed Forces. Reenlistment policy of the Naval Service is promulgated by BUPERS. Neither a less than fully honorable discharge nor an unfavorable “RE” code in itself, is a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for reenlistment through a recruiter.

In the applicant’s issue 3 and 5, the Board found that these issues are matters under the purview of the Board for Correction of Naval Records (BCNR). BCNR has reviewed these issues and its findings are presented in a letter of 10 April 1997.

In the applicant’s issue 4, the Board found the punishment of any service member was then, and is now, a legitimate function of command judgement and prerogative. The command chose to adjudicate his misconduct at Summary Court-Martial. The applicant was afforded the opportunity at the preliminary proceeding to object to trial by court-martial and declined to do so. He plead guilty to all charges and was found guilty of all charges. No relief is warranted.

In the applicant’s issue 6, this Board has no authority to make a determination on a veteran's eligibility for benefits. The Department of Veterans Affairs is a separate entity that makes its own decisions relative to eligibility, usually on a case by case basis.
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. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article [e.g., 86, for unauthorized absence for a period in excess of 30 days] 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
                  Building 36 Washington Navy Yard
                  901 M Street, SE
                  Washington, D.C. 20374-5023     

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