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NAVY | DRB | 1997_Navy | ND97-01274
Original file (ND97-01274.rtf) Auto-classification: Denied


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

ex-SHSA, USNR
Docket No. ND97-01274


 Applicant’s Request
The application for discharge review, received 970814, requested that the characterization of service on the discharge be changed to honorable, and the reason be changed to “HARDSHIP”. The applicant requested a documentary discharge review and listed no representative on the DD-293. On 970911, the applicant obtained representation from the American Legion.

Summary of Review

A documentary discharge review was conducted in Washington, D.C. on 980914. The NDRB determined that the discharge was proper and equitably reflects the quality of service rendered. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.
THE FINDING FOR MISCONDUCT (3630605.96) IS EFFECTIVE FOR 961003 – 970701. ONLY.
SPN CODE HKQ EFFECTIVE 930628 – PRESENT. A general discharge for COSO is written:
“GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT”.

PART I - APPLICANT’S ISSUES (verbatim)


1.       (EQUITY ISSUE) This former member opines that family problems, the illness of his father, contributed to and sufficiently extenuated his misconduct of record to warrant a recharacterization of his service to fully honorable and a narrative reason change to Hardship.
2.       (EQUITY ISSUE) His UCMJ violations notwithstanding, this former member further avers that his discharge is too harsh in light of his otherwise satisfactory service period and, moreover, the fact that the has been denied his MGIB benefits.
3.       (EQUITY ISSUE) This former member finally requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:  None
         Inactive:        USNR (DEP)                940107 - 940117  COG

 Period of Service Under Review :
Date of Enlistment: 940118                        Date of Discharge: 961025

 Length of Service (years, months, days):

         Active: 02 09 08
         Inactive: None

 Age at Entry: 20                                   Years Contracted: 8

 Education Level: 12                                 AFQT: 38

 NEC: SH-0000                              Highest Rate: SHSN
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (1)    Behavior: 3.60 (1)                OTA: 3.60 (4.00 scale)
                  3.0 (1)                  3.0 (1)                           3.00 (5.0 scale)

 Military Decorations: None

 Unit/Campaign/Service Awards: NUC, NDSM, AFSM, SSDR, NATO Medal and SASM (2)

 Nonjudicial Punishment(s): 1              Court(s)-Martial: None

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge:
GENERAL (UNDER HONORABLE CONDITION)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

PART III - CHRONOLOGICAL LISTING OF SIGNIFICANT SERVICE EVENTS1

 940118:  Commenced 36 months on active duty in the Seaman Apprenticeship Guarantee Program at CRUITRACOM Orlando, FL.
940119:  Acknowledged requirements of Montgomery G.I. Bill as set forth in DD Form 2366.
940430:  Joined USS THEODORE ROOSEVELT (CVN-71) at Norfolk, VA.

950707:  Counseled at S-3 Division level regarding his responsibilities because he did not show up for the breakout but arrived in time to stock the shelves.

960209:  Counseled at S-3 Division level for personal behavior reported late for work on 960209.

960215:  Counseled at S-3 Division level for personal behavior and performance because he was disrespectful in language to a petty officer on 960214.

960801:  Counseled at S-3 Division level for being an unauthorized absentee from duty on 960801 because he was sent to medical for back pains and never returned to his quarters or reported in to his LPO after medical.

960803:  NJP for violation of UCMJ, Article 91 (2 specs): Disrespect toward a NCO on 960801 by using curse words and disrespectful language towards a PO1; Willful disobedience of a NCO by not leaving the office as ordered to do by SH2 A_, Article 128 (2 specs): Assault consummated by a battery by pushing with his hands in the chest of SH1 M_ on 960801, and by pushing with his hands in the chest of SH2 A_ on 960716, and Article 134 (2 specs): Communicating a threat by threatening to injure SH1 M_ and his family on 960801, and by threatening to injure SH2 A_ and his family on 960716.
         Award: Confinement on bread and water for three days, forfeiture of $490 per month for two months, and reduction to E-2. There was no indication of an appeal in the record.

960809:  Counseled at S-3 Division level for being late to work after General Quarters (GQ) after being told to report no more than 15 minutes after GQ secured, and for use of foul language to a petty officer.
960812:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offenses violation of UCMJ Article 91, Article 128, and Article 134, as evidenced by your NJP of 960803 during your current enlistment. Receipt acknowledged.
960825:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before a Administrative Discharge Board (ADB). Receipt acknowledged.

960828:  Based upon a preponderance of the evidence, and by unanimous vote, an ADB found that the applicant had committed misconduct due to commission of a serious offenses, that his misconduct warranted separation, that the separation be suspended for four months, and if separated, recommended that the applicant be separated with the characterization of GENERAL (UNDER HONORABLE CONDITIONS).

960828:  Applicant submitted the following statement at his ADB: “I’ve been in the Navy for 2 years, 7 months. I graduated from high school and decided to join the Navy and serve my country. I have been in G-3, G-4 and S-3 divisions on board this ship. I’ve never had any problems on board this ship before. On the morning of the charges against me, I was collecting the video game machines and people were speaking to me. They were just saying hello and basic small talk. SH2 A_ became very belligerent with me saying I was taking my time and I had better listen to what he says. He was cursing me for no reason. I asked him not to curse me and I walked off. Thing got heated and he slammed my hand in the door. I never went inside the office. I did say to him, ‘I will kick your ass.’ I was still upset about him slamming my hand in the door. I was then confronted by SH1 M_ and was told I was going to be counseled for not going to medical. In fact, I did go to medical. I was not feeling well that day. I told him I wasn’t going to sign the counseling chit. I wanted to speak to SH1 L_ about the situation. SH1 L_ decided that I shouldn’t work with SH1 M_ any longer. SH1 M_ and myself got into an argument and he told me I didn’t want any of him. Things got heated and he swung at me and hit me slightly on my mouth. We tussled a little. I don’t know where the information came about me talking about his family. Last Saturday, he came up to me and said, ‘Don’t state anything you can’t finish.’ I didn’t know what he meant by that. I went to my rack and found that someone had spit on my rack. I feel SH1 M_ did it but I have no proof. I’ve worked hard these past 3 years while on board this ship. I don’t want to be punished for the rest of my life for a mistake I may have made in the past. SH1 M_ has had a problem with me for some time now. I went to medical at 0900 on the day of this incident. I went back to work at approximately 1530 after general quarters. I got back from medical approximately 1200. I didn’t see SH1 M_ nor did I see SH3 F_ when I returned. I never stated the words within my mast package. I have no problems with petty officers. On this day, I was in no condition to challenge anyone because of the medication I was given in medical. Everything SH1 M_ did something to me, it was never documented. I guess the reason for that is because he was senior to me. He has harassed me in the past and threatened me that he would see to it that I would leave work late everyday. I get along with everybody within the division. I do not know who the Assistant Supply Officer is and why he would say I was out of control. I have never met him before.”
961007:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offenses. CO’s comments: “Although Counsel for the Respondent indicates that he would submit a letter of deficiencies, none has been received. I concur with the board’s findings and recommendation that SHSA J_ be separated for misconduct due to commission of serious offenses. While I personally feel that SHSA J_’s offenses warrant an other than honorable characterization of service, I recognize the limitations placed on me by [MILPERSMAN Chapter 36] and have separated SHSA J_ with a characterization of service as general under honorable conditions as recommended by the board.”

961016:  BUPERS directed the applicant's discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense.

961025:  Discharged GENERAL (UNDER HONORABLE CONDITIONS)/ MISCONDUCT, authority: Naval Military Personnel Manual, Article 3630600.
RECORDER’S NOTES:

 1 The source for all entries is the service record (includes medical/dental record) unless otherwise noted.

PART IV - EXTRACT OF PERTINENT REGULATION/LAW
A. The Naval Military Personnel Manual, (NAVPERS 15560C, Change 14, effective 03 Oct 96 until [current]), Article 3630605, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT COMMISSION OF A SERIOUS OFFENSE, states:

1. Basis. A member may be separated based on commission of a serious military or civilian offense, when:

a. the specific circumstances of the offense warrant separation; and

b. the member has committed an offense for which a punitive discharge would be authorized by the Manual for CourtsMartial, Appendix 12, for the same or a closely related offense.

2. Procedures

a. The Administrative Board procedure (MILPERSMAN 3640200.7 and 8) shall be used except when the commanding officer believes that the offense committed does not warrant an Other Than Honorable characterization of service under MILPERSMAN 3610250.2b(3). In such cases, the Notification Procedure (3640200.5 and 6) shall be used.

b. The Administrative Board procedure (MILPERSMAN 3640200.7 and 8) must be used when processing misconduct:

(1) which resulted in, or had the potential to result in death, or serious bodily injury (this can include spouse and child abuse incidents), such as but not limited to: homicide, arson, armed robbery, etc.

(2) involving sexual behavior that deviates from socially acceptable standards of morality and decency, including, but not limited to:

(a) lewd and lascivious acts;

(b) sodomy (forcible heterosexual or child molestation);

(c) indecent assault;

(d) indecent acts; and

(e) indecent exposure.

Note that if circumstances involve an incestuous relationship, commanding officers shall notify Chief of Naval Personnel (CHNAVPERS) (Pers661) immediately upon discovery. Per OPNAVINST 1752.2A, Pers661 will review the case for referral to the Family Advocacy Program; if member is not accepted, commanding officers will be directed to process the member for separation. Note that acceptance into Family Advocacy Programs run by Family Service Centers at local commands does not constitute formal acceptance into the Navy's Family Advocacy Program.

(3) misconduct involving sexual harassment. Following disciplinary action, if appropriate, a member must be processed for separation on the first substantiated incident of sexual harassment involving any of the following circumstances:

(a) threats or attempts to influence another's career or job for sexual favors;

(b) rewards in exchange for sexual favors; or

(c) physical contact of a sexual nature which, if charged as a violation of the Uniform Code of Military Justice (UCMJ), could result in a punitive discharge.

Note that an incident is substantiated if there has been a nonjudicial punishment or courtmartial conviction, or the commanding officer is convinced, based on the preponderance of the evidence that sexual harassment has occurred. All forms of sexual harassment not mentioned above must still be handled administratively (i.e.; NAVPERS 1070/613, Administrative Remarks (Page 13) counseling, letters of instruction, nonpunitive letters, remarks in evaluations, etc.).

c. Administrative separation processing is mandatory for reasons listed in paragraph 2b above.

d. Members must be dual or multiple processed where appropriate, for all reasons [for] which minimum [sic (minima)] criteria is [sic (are)] met.

3. Characterization or Description

a. Normally will be under Other Than Honorable conditions if the Administrative Board procedures were used; however

b. Characterization of service as General may be assigned when warranted under paragraph 2b of MILPERSMAN 3610250.

c. For respondents who have completed entry level status, characterization of service as Honorable is not authorized unless the respondent's record is otherwise so meritorious that any other characterization would be clearly inappropriate.

d. When characterization of service under Other Than Honorable is not warranted for a member in entry level status, the separation shall be described as Entry Level Separation per paragraph 3a of MILPERSMAN 3610250.

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 91: Disrespect to a petty officer, Article 128: Assault consummated by a battery, and Article 134: Communicating a threat, 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 9, STANDARDS FOR DISCHARGE REVIEW, states, in part:

 “9.2 Propriety of the Discharge
a. A discharge shall be deemed to be proper unless, in the course of discharge review, it is determined that:

(1) There exists an error of fact, law, procedure, or discretion associated with the discharge at the time of issuance; and that the rights of the applicant were prejudiced thereby (such error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made); or

(2) A change in policy by the military service of which the applicant was a member, made expressly retroactive to the type of discharge under consideration, requires a change in the discharge.

b. When a record associated with the discharge at the time of issuance involves a matter in which the primary responsibility for corrective action rests with another organization (for example, another Board, agency, or court), the NDRB will recognize an error only to the extent that the error has been corrected by the organization with primary responsibility for correcting the record.

c. The primary function of the NDRB is to exercise its discretion on issues of equity by reviewing the individual merits of each application on a case-by-case basis. Prior decisions in which the NDRB exercised its discretion to change a discharge based on issues of equity (including the factors cited in such decisions or the weight given to factors in such decisions) do not bind the NDRB in its review of subsequent cases because no two cases present the same issues of equity.

d. The following applies to applicants who received less than fully honorable administrative discharges because of their civilian misconduct while in an inactive duty status in a reserve component and who were discharged or had their discharge reviewed on or after April 20, 1971: the NDRB shall either recharacterize the discharge to Honorable without any additional proceedings or additional proceedings shall be conducted in accordance with the Court’s Order of December 3, 1981, in Wood v. Secretary of Defense to determine whether proper grounds exist for the issuance of a less than honorable discharge, taking into account that:

(1) An other than honorable (formerly undesirable) discharge for an inactive duty reservist can only be based upon civilian misconduct found to have affected directly the performance of military duties;

(2) A general discharge for an inactive duty reservist can only be based upon civilian misconduct found to have had an adverse impact on the overall effectiveness of the military, including military morale and efficiency.”

D. SECNAVINST 5420.174C, enclosure (1), Manual for Discharge Review 1984, Chapter 9, Standards for Discharge Review, paragraph 9.3, Equity of the Discharge, states, in part, that a discharge shall be deemed to be equitable unless in the course of a discharge review, it is determined that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the NDRB viewed in conjunction with the factors listed in this paragraph and the regulations under which the applicant was discharged, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance. Areas of consideration include, but are not limited to:

1. Quality of service, as evidenced by factors such as:

a. service history, including date of enlistment, period of enlistment, highest rank achieved, conduct and proficiency ratings (numerical and narrative);

b. awards and decorations;

c. letters of commendation or reprimand;

d. combat service;

e. wounds received in action;

f. records of promotions and demotions;

g. level of responsibility at which the applicant served;

h. other acts of merit that may not have resulted in formal recognitions through an award or commendation;

i. length of service during the service period that is the subject of the discharge review;

j. prior military service and type of discharge received or outstanding post-service conduct to the extent that such matters provide a basis for a more thorough understanding of the performance of the applicant during the period of service which is the subject of the discharge review;

k. convictions by court-martial;

l. records of nonjudicial punishment;

m. convictions by civil authorities while a member of the service, reflected in the discharge proceedings or otherwise noted in the service records;

n. records of periods of unauthorized absence;

o. records relating to a discharge in lieu of court-martial.

2. Capability to serve, as evidenced by factors such as:

a. Total capabilities. This includes an evaluation of matters such as age, educational level, and aptitude scores. Consideration may also be given as to whether the individual met normal military standards of acceptability for military service and similar indicators of an individual's ability to serve satisfactorily, as well as ability to adjust to military service.

b. Family and personal problems. This includes matters in extenuation or mitigation of the reason for discharge that may have affected the applicant's ability to serve satisfactorily.

c. Arbitrary or capricious actions. This includes actions by individuals in authority which constitute a clear abuse of such authority and that, although not amounting to prejudicial error, may have contributed to the decision to discharge the individual or unduly influence the characterization of service.

d. Discrimination. This includes unauthorized acts as documented by records or other evidence.

E. The Veteran's Educational Assistance Act of 1984 (New G.I. Bill or Montgomery G.I. Bill) (effective 850701 to present) states that in order to receive educational benefits, an applicant must acknowledge the following:

- I am eligible for the New GI Bill based on my initial entry on active duty on or after July 1, 1985.
- I understand that I am automatically enrolled and that I have the option to disenroll.
- If I disenroll, I must do so on the date designated by my service.
- I am/am not a Service academy or ROTC scholarship graduate and am NOT ELIGIBLE for the New GI Bill.
- I understand that if enrolled in the New GI Bill, my basic pay will be reduced $100 per month for EACH of the first full 12 months of active duty and CANNOT BE REFUNDED, SUSPENDED OR STOPPED.
- I must complete three years of active duty service before I am entitled to $300 per month for 36 months.
- If I have a two year obligation, I understand that I must complete two years of active duty to receive $250 per month for 36 months.
- I must complete two years of active duty service and join the Selected Reserve for a minimum four year service agreement before I am entitled to $300 per month for 36 months.
- If a non-high school graduate, I must complete all requirements for a high school diploma (or an equivalency certificate) before completion of my initial tour in order to qualify for the New GI Bill.
- I must use my benefits within 10 years of my separation or discharge from active duty for the entitlement in paragraph 2.g., or complete my Selected Reserve obligation for the entitlement in paragraph 2.h.
- I must receive an honorable discharge for service that established entitlement to the New GI Bill.
- I understand that if enrolled in the New GI Bill.

PART V - RATIONALE FOR DECISION
Discussion
         After a thorough review of the records, supporting documents 1 , facts, and circumstances unique to this case, the Board determined that the characterization of the applicant’s service is equitable. The discharge shall remain : GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.
         The applicant was separated on 961025 with a General discharge under honorable conditions by reason of misconduct due to the commission of a serious offense (A and B, Part IV). On 950707, 960209, 960215, and 960801, the applicant received S-3 Division level counseling regarding his responsibilities, his personal behavior, his tardiness to work and his failure to return to work after visiting medical. On 960803, the applicant had NJP for disrespect towards a NCO (twice), assault consummated by a battery (twice), and communicating a threat (twice). On 960809, he was counseled for the fifth time about being late to work. On 960812, the applicant was notified of his commanding officer’s (CO’s) intention to recommend him for administrative separation under other than honorable conditions for misconduct due to the commission of serious offenses as evidenced by his NJP. On 960825, he consulted with legal counsel prior to electing to appear before an Administrative Discharge Board (ADB). On 960828, by unanimous vote, an ADB found that the applicant had committed misconduct due to commission of a serious offenses, that his misconduct warranted separation, that the separation be suspended for four months, and if separated, recommended that the applicant be separated with the characterization of GENERAL (UNDER HONORABLE CONDITIONS). On 961007, the applicant’s CO concurred with the ADB and recommended the applicant’s General discharge. On 961016, BUPERS directed the applicant’s General discharge under honorable conditions for misconduct due to the commission of a serious offense. The Board found the applicant’s discharge to be proper and equitable (C and D, Part IV).
         In the applicant’s issue 1, he opines that family problems, the illness of his father, contributed to and sufficiently extenuated his misconduct of record to warrant a recharacterization of his service to fully honorable and a narrative reason change to Hardship. The applicant has submitted no substantiation establishing that he had a family problem or that his family situation was of such severity it could not be resolved through available military channels.

In the applicant’s issue 2, he avers that his discharge was too harsh in light of his otherwise satisfactory service period and, moreover, the fact that the has been denied his MGIB benefits. As with each case before us, the seriousness of misconduct must be judged on its own merit; it can neither be excused nor extenuated solely on its isolation. Contrary to the applicant’s issue, and based on his service performed, the Board considered the applicant’s discharge to be commensurate to the offenses committed. The fact that the applicant lost his MGIB Benefits is another matter which can only be addressed by the Department of Veterans Affairs which is a separate entity that makes its own decisions relative to eligibility, usually on a case by case basis (E, Part IV).
         In the applicant’s issue 3, he requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application. The Board recognizes that while the applicant cannot undo his past mistakes, he can contribute in a positive and significant way to society (D, Part IV). Contributions looked upon favorably by this Board include educational pursuits, employment track record, being a contributing member of society and making a positive impact in the community through volunteer work. The applicant must prove that his post-service conduct has been above reproach and he is making a valid attempt at making amends for the misconduct he committed during the period of naval service under review. The 15 year window during which applicants may appeal their discharges was established to allow time for establishing themselves and making these substantial, documented life style changes and community contributions which could offset and make amends for the misconduct of record. The applicant has submitted no supporting documentation that would warrant clemency.

Recorder’s Note:

 1 In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter to the Board dtd 961218
Copy of DD Form 214.

PART VI - INFORMATION FOR THE APPLICANT
Decision:

 The 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 3630605.

         If you believe that the decision in your case is unclear, not responsive to the issues that 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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