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NAVY | DRB | 1997_Navy | ND97-01385
Original file (ND97-01385.rtf) Auto-classification: Denied


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

ex-SHSR, USN
Docket No. ND97-01385


 Applicant’s Request
The application for discharge review, received 970919, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review and listed the Veterans of Foreign Wars as his representative on the DD Form 293.


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: UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.
SPN CODE HKA

THIS IS THE CORRECT SHELL FOR MISCONDUCT due to a pattern of misconduct. 940722 - 961002 ONLY.

 THE FINDING FOR MISCONDUCT, (3630600) EFFECTIVE 940722 - 961002. THE SPN CODE IS EFFECTIVE 930628 - PRESENT. The SPN Code change 930628 changed the wording for pattern of misconduct to PATTERN OF MISCONDUCT, and the wording for a general discharge to GENERAL (UNDER HONORABLE CONDITIONS).


PART I - APPLICANT’S ISSUES (verbatim)


 1. We ask you to examine the case for fairness and equity and to change the discharge as requested by the applicant.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:  None
         Inactive:        USNR (DEP)                921016 - 921020  COG

 Period of Service Under Review :
Date of Enlistment: 921021                        Date of Discharge: 960807

 Length of Service (years, months, days):

         Active: 03 09 17
         Inactive: None

 Age at Entry: 19                                   Years Contracted: 4

 Education Level: 12                                 AFQT: 53

 NEC: SH-0000                              Highest Rate: SHSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.66 (3)    Behavior: 3.80 (3)                OTA: 3.80

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, NDSM, SSDR, and SASM

 Nonjudicial Punishment(s): 3              Court(s)-Martial: None

 Days of Unauthorized Absence: None

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

PART III - CHRONOLOGICAL LISTING OF SIGNIFICANT SERVICE EVENTS1

 930816:  Joined USS SYLVANIA (AFS-2) in Norfolk, VA. [Date estimated from Page 9 (Enlisted Performance Record).]
931004:  To unauthorized absence (UA) status at 0730.

931005:  From UA at 0530 (22 hours/Surrendered onboard). [Disposition NFIR.]

 940516:  Joined USS STUMP (DD-978) in Norfolk, VA. [Date estimated from Page 9 (Enlisted Performance Record).]

960501:  NJP for violation of UCMJ, Article 86: UA (unspecified), and Article 87: Missing ship’s movement on 960422.
         Award: Forfeiture of $200 for one month, extra duty for 10 days, and reduction to E-2. Forfeiture and reduction suspended for six months. There was no indication of an appeal in the record.

960501:  Retention Warning: Advised of deficiencies in conduct (UA and missing ship’s movement); notified of corrective actions and assistance available; advised of the consequences of further deficiencies, and issued a discharge warning. Receipt acknowledged.
960601:  Arrested by civil authorities in Newport News, VA for driving under the influence; released into the custody of the Navy, and is awaiting to appear in court. [Estimated from commanding officer’s (CO’s) letter.]

960606:  Forfeiture of $200 and reduction in rate to E-2 suspended at CO’s NJP on 960501 vacated due to continued misconduct.

960606:  NJP for violation of UCMJ, Article 111: Drunk driving on 960601.
         Award: Forfeiture of $100 for one month, and extra duty for 15 days. There was no indication of an appeal in the record.
9606XX:  Navy Drug Laboratory (NAVDRUGLAB) Jacksonville, FL reported that the applicant’s Random Sample, received on 960603, tested positive for THC. [Exact date not legible on message.]
960612:  Readiness Support Group (RSG) Medical: Diagnosed suitable for duty. [Extracted from CO’s letter.]

960620:  NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substance (THC) on 960529.
         Award: Forfeiture of $437 per month for two months, extra duty for 45 days, and reduction to E-1. There was no indication of an appeal in the record.
960629:  Applicant notified of intended recommendation for discharge other than honorable by reason of misconduct due to commission of a serious offense as evidenced by Virginia Uniform Summons dtd 960601 and NJP on 960606, misconduct due to drug abuse as evidenced by NAVDRUGLAB message of 960618, and misconduct due to a pattern of misconduct as evidenced by NJPs on 960501, 960606 and 960620. Receipt acknowledged.
960629:          Applicant advised of his rights and having chosen not to 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 separation. Receipt acknowledged.
960701:  CO recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to drug abuse, and pattern of misconduct.

960729:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

960807:  Discharged UNDER OTHER THAN HONORABLE CONDITIONS/ PATTERN OF MISCONDUCT, authority: Naval Military Personnel Manual, Article 3630600.
RECORDER’S NOTE:

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

PART IV - EXTRACT OF PERTINENT REGULATION/LAW


A. The Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 22 Jul 94 until 02Oct 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, nonpunitive 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 preservice, 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. In accordance with the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 87: Missed ship’s movement, Article 111: Drunk driving, and Article 112a: Wrongful use of a controlled substance, 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.

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 : UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.
         The applicant was discharged on 960807 under other than honorable conditions by reason of misconduct due to a pattern of misconduct (A and B, Part IV). On 960501, the applicant had his first NJP for UA and missing ship’s movement followed by a Retention Warning. On 960606, he had his second NJP for drunken driving. On 960612, RSG Medical diagnosed the applicant suitable for duty. On 960620, the applicant had his third NJP for marijuana. On 960629, the applicant was informed of his 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 Virginia Uniform Summons dtd 960601 and NJP on 960606, misconduct due to drug abuse as evidenced by NAVDRUGLAB message of 960618, and misconduct due to a pattern of misconduct as evidenced by NJPs on 960501, 960606 and 960620. The a pplicant chose not to consult with legal counsel prior to waiving all his rights except the right to obtain copies of the documentation being forwarded to the discharge authority in support of his ADSEP. On 960701, the applicant’s CO recommended him for ADSEP under other than honorable conditions for misconduct due to the commission of a serious offense, drug abuse, and a pattern of misconduct. On 960729, BUPERS directed the applicant’s discharge UNDER OTHER THAN HONORABLE CONDITIONS/ PATTERN OF MISCONDUCT.
         In the applicant’s issue, he asked the Board to review his case for fairness and equity and to change the discharge to General (Under Honorable Conditions). The Board found the reason for discharge to be proper and the characterization of discharge to be equitable (C and D, Part IV). The Board will not grant relief on the basis of this issue.

         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: 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: UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF 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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