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NAVY | DRB | 1997_Navy | ND97-01369
Original file (ND97-01369.rtf) Auto-classification: Denied


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

ex-HM2, USNR
Docket No. ND 97-01369


 Applicant’s Request
The application for discharge review, received 970909, requested that the characterization of service on the discharge be changed to at least a general/under honorable conditions. The applicant requested a documentary discharge review and listed no representative on the DD-293. On 970927, the applicant obtained representation from the American Legion.


Summary of Review

A documentary discharge review was conducted in Washington, D.C. on 980928. The NDRB determined that the discharge properly and equitably reflects the quality of service rendered. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.
THE FINDING FOR MISCONDUCT IS EFFECTIVE FOR 940722 - 961002. ONLY.

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

PART I - APPLICANT’S ISSUES (verbatim)


 1. (EQUITY ISSUE) Aside from an unfortunate accident, this former member contends that his overall creditable service, including his above average evaluation markings, is sufficient to warrant a fully honorable discharge.

2. (EQUITY ISSUE) Although discharged a relatively short time, this former member requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service, in assessing the merits of his application.

PART II - SUMMARY OF SERVICE

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

          Active:  USNR                       831109 - 871106  HON
         Inactive:        USNR                       871107 - 891104  HON
 USNR (DEP)                830526 - 831108  COG
Period of Service Under Review :
Date of Enlistment: 891105                        Date of Discharge: 950728

 Length of Service (years, months, days):

 Active: 03 10 22
          Inactive: 01 10 02

 Age at Entry: 24                                   Years Contracted: 6

 Education Level: 12                                 AFQT: 38

 NEC: HM-8404                              Highest Rate: HM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.96 (6)    Behavior: 3.96 (6)                OTA: 3.93

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, B“E”R, NDSM, Navy Fleet Marine Force Ribbon, SSDR, and Expert Pistol Shot Medal.

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

 Days of Unauthorized Absence: 3

 Character, Narrative Reason, and Authority of Discharge:
UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART III - CHRONOLOGICAL LISTING OF SIGNIFICANT SERVICE EVENTS1


 891105:  Re-enlisted for six years in the USNR at the Navy and Marine Corps Reserve Center (N&MRC) in Columbia, SC.

900825:  Recalled to active duty (approximately 90 days) for Desert Shield/Storm operations.

900827:  Joined Naval Hospital (NAVHOSP) Columbia, SC.

910513:  Released from active duty and returned to drilling unit (N&MRC Columbia, SC).

910903:  Ordered to 48 months active duty from N&MRC Columbia, SC.

911126:  Joined 4 TH FSSG FMF USMCR, Marietta, GA.

931030:  IHCA (in hand civilian authority) – Arrested for DUI Alcohol, Severe injury by vehicle DUI, homicide by vehicle, open container, wrong side of road, racing.

931103:  Returned to military jurisdiction. (3 days).

950306:  Entered a plea of guilty to the charge of vehicular homicide in the Superior Court, Cobb Judicial Circuit, State of Georgia; acknowledged that the offense provides for imprisonment for not less than two years or more than 15 years and a fine of $100,000. Sentencing scheduled for 950601. [Sentence NFIR.]
950329:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction as evidenced by guilty plea in Superior Court.
950329:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected the right to obtain copies of the documents used to support the basis for the separation, to request an Administrative Discharge Board (ADB) with representation. Applicant did not object to this separation. Receipt acknowledged.
950505:  Based upon a preponderance of the evidence and by unanimous vote, an ADB found that the applicant had committed misconduct due to civilian conviction, that the misconduct warranted separation and recommended discharge under other than honorable conditions.
                  
950613:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to civilian conviction.

950717:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to civilian conviction.

950728:  Discharged UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.
RECORDER’S NOTE:

 1 The source for all entries is the service record (includes medical/dental record) unless otherwise noted. The applicant’s medical record was not available for review.

PART IV - EXTRACT OF PERTINENT REGULATION/LAW
A. The 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, states:

1. A member may be separated for misconduct by reason of one or more of the following circumstances:

a. Misconduct Due to Minor Disciplinary Infractions . A series of at least three but not more than eight minor violations (e.g. specifications) of the Uniform Code of Military Justice (UCMJ) ( none that could result in a punitive discharge - see Manual for Courts-Martial, Appendix 12, and not drug related) documented in the service record, within the current enlistment, which have been disciplined by not more than two punishments under the UCMJ. The member must have violated counseling (Article 3610250.5) prior to initiating processing. If separation of a member in entry level status is warranted solely by reason of minor violations of the UCMJ, and the member's misconduct does not meet the eligibility requirements for any other misconduct, the processing should be under Entry Level Performance and Conduct (Article 3630200).

b. Misconduct Due to a Pattern of Misconduct

(1) A pattern of misconduct is defined as discreditable involvement with civil and military authorities. The member must have violated counseling (Article 3610250.5) prior to initiating processing. Such a pattern may include both minor and serious infractions as evidenced by:

 (a) Three or more civilian convictions within the current enlistment.

(b) Three or more punishments under the UCMJ within the current enlistment.

(c) Any combination of three civilian convictions and punishment(s) under the UCMJ within the current enlistment.

(d) Three or more periods of unauthorized absence of more than 3 days duration each within the current enlistment.

(e) Nine or more violations (e.g., specifications) of the UCMJ within the current enlistment which have been disciplined by punishment under the UCMJ.

(2) A pattern of misconduct is defined as well by discreditable management of one's personal and financial affairs as evidenced by:

(a) A set pattern of failure to pay just debts. (Include financial statement prepared as specified in Article 6210140.14 when case is forwarded.)

(b) A set pattern of failure to contribute adequate support to dependents or failure to follow orders, decrees, or judgments of a civil court concerning the support of dependents. Include copies of court order(s), judgments, etc.

c. Misconduct Due to Commission of a Serious Offense (processing not mandatory) . An individual may be processed for administrative separation when a punitive discharge would be authorized by the Manual for Courts-Martial for the same or a closely related offense. Note that:

(1) If the offense is evidenced by a general or special court-martial conviction--the findings of which have been approved by the Convening Authority--the findings of the court-martial as they relate to the administrative discharge process (basis and reason) are binding on the Administrative Board (see Article 3610260.7a).

(2) If the offense is evidenced solely by a court-martial conviction and the court-martial Convening Authority has remitted or suspended a punitive discharge, forward the case to the same Convening Authority for endorsement according to Article 3610260.7b.

d. Misconduct Due to Commission of a Serious Offense (processing mandatory)

(1) An individual must be processed for administrative separation when the commanding officer believes by a preponderance of the evidence that the individual committed extremely serious misconduct that either resulted in, or had the potential to result in death, or serious bodily injury, such as but not limited to: homicide, arson, armed robbery, etc.

(2) Sexual Perversion. An individual must be processed for administrative separation when an incident involves sexual behavior that deviates from socially acceptable standards of morality and decency. Such behavior may violate military or civilian law and includes, but is not limited to:

(a) lewd and lascivious acts;

(b) sodomy (forcible heterosexual or child molestation); consensual and forcible homosexual acts with of-age individual shall be processed under Article 3630400);

(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) (Pers-661/83) immediately upon discovery. Per OPNAVINST 1752.2, Pers-661 will review the case for referral to the Family Advocacy Program; if member is not accepted, Pers-83 will direct processing 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) Sexual Harassment. An individual must be processed for administrative separation following punitive actions if appropriate, 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 UCMJ, could result in a punitive discharge.

Note that an incident is substantiated if there has been a nonjudicial punishment or court-martial 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, non-punitive letters, remarks in evaluations, etc.).

e. Misconduct Due to Civilian Conviction (processing not mandatory) . An individual may be processed for administrative separation based on a conviction by civilian authorities, or action taken which is equivalent to a finding of guilty, provided the offense, or closely related offense could warrant a punitive discharge (see Manual for Courts-Martial, Appendix 12), or the sentence includes confinement of 6 months or more without regard to suspension or probation.

f. Misconduct Due to Civilian Conviction (processing mandatory) . An individual must be processed for administrative separation based on a conviction by civilian authorities, or action taken which is equivalent to a finding of guilty, which involved an offense that either resulted in, or had the potential to result in death, or serious bodily injury, such as but not limited to: homicide, arson, armed robbery, etc., or is a sexual perversion as described in subparagraphs 1d(2)(a) - (e).

2. Under this article, counseling and warning as outlined in Article 3610260.5 is only required for members being processed for misconduct due to pattern of misconduct or misconduct due to minor disciplinary infractions. The latest offense and counseling and warning must have occurred while assigned to the parent command. Separation activities defined in Article 3640476, and other commands to which temporary duty is authorized by CHNAVPERS, are exempt from this requirement.

3. Characterization. Normally Other Than Honorable, but characterization as General may be assigned when warranted. 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. When characterization of service as Other Than Honorable is not warranted for a member in entry level status, the separation shall be described as Entry Level Separation.

4. Reduction in Rate. When a servicemember serving in pay grade E-4 or above is administratively separated with an Other Than Honorable characterization of service, the member shall be administratively reduced to pay grade E-3, such reduction to become effective upon separation.

5. Procedures

a. The Administrative Board procedure (Article 3640200) shall be used in processing all reasons, except when processing for misconduct due to minor disciplinary infractions, in which case Notification procedure (Article 3640200) may be used.

b. Separation processing for misconduct due to civil conviction may be initiated whether or not a member has filed an appeal of a civilian conviction or has stated an intention to do so. Execution of an approved separation should be withheld pending outcome of the appeal or until the time for appeal has passed. The member may be separated prior to final action on appeal upon his or her request or upon direction of the Secretary of the Navy (SECNAV).

c. Members confined in a foreign penal institution may be processed for separation, but may not be discharged or separated from the service until the completion of imprisonment and return to the United States. In unusual cases, (i.e., life sentence without possibility of parole) such discharges or separations may be authorized by SECNAV by Reason of Best Interest of the Service (see Article 3630900). SECNAVINST 5820.4 refers.

d. Members must be dual or multiple processed where appropriate, (i.e., members processed for misconduct due to civil conviction must also be processed (dual) for misconduct due to commission of a serious offense if the offense for which convicted could warrant a punitive discharge). Exceptions:

(1) misconduct involving only pre-service, prior service, or current service homosexual conduct shall be processed only under Article 3530400;

(2) misconduct involving only drug abuse (civil or military) shall be processed only under Article 3630620;

(3) misconduct involving only violation of UCMJ Article 83 shall be processed only under Article 3630100.

e. Members may be processed for separation by reason of misconduct for offenses which occur Preservice or in a prior enlistment, provided the misconduct was unknown to the Navy at the time of enlistment or reenlistment and processing for fraudulent enlistment is inappropriate. Under these unusual circumstances, Notification procedures (see Article 3640200) shall be used as the least favorable characterization of service possible for offenses which occur prior to entry into active duty or in prior enlistment is General.

f. Officers exercising special court-martial convening authority are delegated authority (see Article 3610220) to separate members only if an Administrative Board recommends separation with a General or Honorable discharge, the member does not object to the discharge, and that characterization is consistent with guidance in Article 3610300. In cases where member objects to separation, CHNAVPERS (Pers-83) is Separation Authority. Regardless of an Administrative Board's recommendation, CHNAVPERS is Separation Authority for members being separated by reason of misconduct due to commission of a serious offense as evidenced by sexual perversion or sexual harassment.

g. Forward processed case by letter of transmittal to Pers-83. Ensure member's full name, rate, and SSN have been indicated on each page of the case. In those cases where the commanding officer effects the separation, indicate date and characterization of separation awarded. Refer to Article 3640200.11 for message submission option in those cases where member waives an Administrative Board, the commanding officer does not have authority to effect separation, or member objects to separation.

 B. 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.”

C. 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.

PART V - RATIONALE FOR DECISION
Discussion
         After a thorough review of the records, facts, and circumstances unique to this case, the Board determined that the reason for discharge was proper and the discharge characterization of the applicant’s service was equitable. The discharge shall remain : UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

          The applicant was discharged on 950728 under other than honorable conditions by reason of misconduct due to civilian conviction (A, Part IV). On 950306, the applicant entered a plea of guilty to vehicular homicide in the Superior court, Cobb Judicial Circuit, State of Georgia and acknowledged that the offense provides for imprisonment for not less than two years or more than 15 years and a fine of $100,000. On 950329, he was informed of his commanding officer’s (CO’s) intention to recommend him for administrative separation (ADSEP) under other than honorable conditions for misconduct due to the commission of a serious offense as evidenced by his guilty plea in civilian court. The applicant chose to consult with legal counsel prior to electing to appear before an ADB. On 950505, b ased upon a preponderance of the evidence and by unanimous vote, an ADB found that the applicant had committed misconduct due to civilian conviction, that the misconduct warranted separation and recommended discharge under other than honorable conditions. On 950613, the applicant’s CO concurred with the ADB and recommended him for ADSEP under other than honorable conditions for misconduct due to the commission of a serious offense. On 950717, BUPERS directed the applicant’s discharge UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT. The Board found the applicant’s discharge to be both proper and equitable (B and C, Part IV).
         In the applicant’s issue 1, he states that aside from an unfortunate accident, his overall creditable service, including his above average evaluation markings, is sufficient to warrant a fully honorable discharge. The Board disagrees and finds that the circumstances surrounding the accident were sufficient to overshadow the applicant’s overwise honorable service.

 In the applicant’s issue 2, he requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service, 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 (C, 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.

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

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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