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NAVY | DRB | 1997_Navy | ND97-01396
Original file (ND97-01396.rtf) Auto-classification: Denied


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

ex HR, USN
Docket No. ND97-01396


 Applicant’s Request
The application for discharge review, received 970922, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary discharge review. He did not list any representative on the DD-293.


Summary of Review

A documentary discharge review was conducted in Washington, D.C. on 980914. The NDRB determined that the discharge equitably reflects the quality of service rendered. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/Misconduct - commission of a serious offense, 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 (verbatim)


 1. I respectfully request that my general/under honorable conditions be upgraded to a honorable discharge do to my exemplary conduct after my military service.


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:  None
         Inactive:        USNR (DEP)                930812 - 940725  COG

 Period of Service Under Review :
Date of Enlistment: 940726                        Date of Discharge: 960412

 Length of Service (years, months, days):

         Active: 01 08 16
         Inactive: None

 Age at Entry: 18                                   Years Contracted: 4 (1 YR EXT)

 Education Level: 12                                 AFQT: 79

 NEC: HM 0000                              Highest Rate: HA

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.0 (1) 5.0 scale on NAVPERS 1616.            Behavior: 2.0 (1)                 OTA: 2.17

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

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

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge:
GENERAL (UNDER HONORABLE CONDITIONS)/Misconduct - commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART III - CHRONOLOGICAL LISTING OF SIGNIFICANT SERVICE EVENTS1

940726:  Joined NAVCRUITRACOM GREAT LAKES, IL

 940728:  Retention Warning: Applicant advised of being retained in the naval service despite his defective enlistment and induction due to fraudulent entry into naval service as evidenced by his failure to disclose his preservice civil involvement, to wit: Speeding, 1/94, San Diego, CA.; sentenced to complete 8 hour defensive driving course. Advised that further deficiencies could result in disciplinary action and administrative separation, and all deficiencies during the current enlistment would be considered. Subsequent violations of the UCMJ or conduct resulting in civilian conviction could result in separation under other than honorable conditions. Receipt acknowledged

940930:  Joined NHCS GREAT LAKES, IL

 950204:  Joined NAVAL HOSPITAL CAMP PENDLETON, CA

950711: Charged with violation of UCMJ, Article 92: Dereliction of duty in that member, who knew of his duties while on active duty and assigned to 7 North, on or about 11 July 1995 was derelict in the performance of those duties in that he willfully failed to perform a patient assessment as was his duty to do; and Article 107: False official statement in that member did, on or about 11 July 1995, with intent to deceive, complete on official patient assessment form, to wit: depicting patient assessment completed, which statement was false, and was then known by member to be false. Executive Officer dismissed the charges with a warning.

960125:  NJP for violation of UCMJ, Article 92: Dereliction of duty in that member, who knew of his duties while on active duty and assigned to 7 North, on or about 12 December 1995, was derelict in the performance of those duties in that he willfully failed to perform a patient assessment as it was his duty to do so, and violation of UCMJ Article 107: False official statement in that member did on or about 12 December 1995, with intent to deceive, complete an official patient assessment form, to wit: depicting patient assessment completed on patient, which statement was false, and was then known to be so false.
         Award: Forfeiture of $436 per month for 2 months, restriction and extra duty for 45 days, reduction to HR. No indication of appeal in the record.
960126:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Receipt acknowledged. Applicant was advised of his rights and requested an Administrative Board.
960129:          After consulting with counsel certified under UCMJ Article 27B, applicant elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

960301:  Commanding Officer recommended applicant be separated with a general (under honorable conditions) discharge by reason of misconduct due to the commission of a serious offense. Commanding Officer’s verbatim comments: HR (applicant) was processed for administrative separation following nonjudicial punishment on 25 January 1996 for violation of the UCMJ, Article 92, dereliction of duty and Article 107, false official statement. Although initially electing an administrative board, on 29 January 1996, following consultation with counsel, HR R_ changed his mind and waived his right to an administrative board.

         HR R_’s misconduct technically qualifies him for separation with an other than honorable discharge. I believe, however, that considering the brevity of his enlistment, his entire record, and the fact that he has made some positive contributions to the Navy, that the just and appropriate outcome is immediate separation from the Navy with a general discharge. Accordingly, I strongly recommend that HR R_ be administratively separated from the naval service with a general discharge as soon as possible.

960329:  BUPERS directed the applicant's discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

960412:  Discharged GENERAL (UNDER HONORABLE CONDITIONS)/ Misconduct - commission of a serious offense; 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 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, 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 92, for Willful dereliction of duties, and Article 107, False official statement, if adjudged at a Special or General Court Martial.
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 which 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.
D . 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.”

 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 - commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.
         The applicant was discharged on 980914 with a characterization of general (under honorable conditions) by reason of misconduct due to the commission of a serious offense (A and B, Part IV). During recruit training at Great Lakes, IL., applicant received a Retention Warning dated 940728 for fraudulent entry into the service for failure to disclose pre-service civil involvement, to wit: Speeding, 1/94, in San Diego, CA., for which he was required to attend a defensive driving course. On 950905, the Executive Officer of Naval Hospital Camp Pendleton dismissed with warning the charges of violation of UCMJ, Article 92: Dereliction of duty, and Article 107: False official statement. NJP was awarded to the applicant on 960125 for violation of UCMJ, Article 92: Dereliction of duty, and Article 107: False official statement. On 960126, applicant was notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. He was also advised of his rights and requested an Administrative Board. On 960129, after consulting with counsel, applicant elected to waive all rights except the right to obtain copies of documents used to support the basis for the separation. The Commanding Officer recommended a general discharge based on the brevity of his enlistment, member’s entire record, and the fact that applicant had made some positive contributions to the Navy. BUPERS concurred with the Commanding Officer’s recommendation and directed the discharge be characterized as general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. The NDRB found no inequity or impropriety with this separation (C and D, Part IV).

         In his only issue, the applicant requests that his discharge by recharacterized based upon his post-service conduct (C, Part IV). In reviewing the items submitted, the Board determined the applicant has not provided sufficient types of documentation of good character and conduct, and therefore no relief will be granted based upon this issue. The applicant’s efforts need to be more encompassing than those provided. He should produce evidence of continuing educational pursuits, a consistent employment record, evidence of community service, and certification of non-involvement with civil authorities in order for consideration for clemency based on post-service conduct. A 15 year window is provided for the possible recharacterization of a discharge and the applicant is encouraged to employ this venue in order to obtain relief from his current discharge.

Recorder’s NoteS:

 1 In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of statement from San Diego County Sheriff’s Department dated 971021.
Copy of high school transcript (pre-service).
Undated reference from the Service Manager of car dealership (employer) in Amarillo, Texas.
Undated reference from the District Manager of Boot World (employer), San Diego, CA.
Copy of Member 1 and 4 of applicant’s DD Form 214.
Copy of Certificate for USMC Drivers Improvement School dated February 5 1995.
Twenty-eight pages of service documents applicant received while in the service.

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 - commission of a serious offense; authority: NAVMILPERSMAN, Article 3630600.

If you believe that the decision in your case is unclear, not responsive to the issues which you raised, or does not otherwise comport with the decisional documents 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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