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NAVY | DRB | 1999_Navy | ND99-00015
Original file (ND99-00015.rtf) Auto-classification: Denied


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

ex-YNSA, USN
Docket No. ND99-00015

Applicant’s Request
The application for discharge review, received 981002, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 990920. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: GENERAL UNDER HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.       Exhibit 1 incorporated by reference is summarized below:
-        Change discharge from General under Honorable Conditions to Honorable
-        Applicant entered service 5 Sep 89 – attended training
-        Advanced to PO3 Jan 92 – recognized for sustained superior performance
-        Sep 92 – Mast for False or Unauthorized Pass – date of birth change
-        Administrative Discharge Board recommended discharge
-        Productive crew member prior to infraction, advancing in rate at acceptable pace
-        Discipline imposed did not comport with philosophy of progressive discipline
-        Full weight of disciplinary action imposed was excessively harsh and disparate treatment
-        Excessive amount of action taken against applicant was inequitable under the circumstances
-        Change in discharge status to Honorable is reasonable compromise to relieve lifelong stigma
-        Employed as Deputy Sheriff…regrets youthful indiscretion.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214.
Copy of Exhibit 1 (4pgs).
Copy of Certificate of Training for Office Corrections Academy.
Copy of Employee Identification Card.
Copy of Employee Performance Evaluation.
Copy of Certificate of Completion for Basic Recruit Corrections.
Copy of Certificate for the Commission on Criminal Justice Standards and Training.
Copy of High Firearms Proficiency Award.
Copy of Letter of Appreciation.
Copy of Letter of Congratulation.
Copy of Certificate of Release or Discharge from Active Duty.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     890726 - 890904  COG

 Period of Service Under Review :
Date of Enlistment: 890905               Date of Discharge: 930205

 Length of Service (years, months, days):

         Active: 03 05 01
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 75

 Highest Rate: YN3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.65 (4)    Behavior: 3.50 (4)                OTA : 3.55

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: None

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

GENERAL UNDER HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

920228:  Retention Warning: Advised of deficiency (Misconduct due to minor disciplinary infraction-Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920228:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of $200 per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.
920814:  Reduction in rate to E-3 and forfeiture of $200 pay per month for 2 months suspended at CO's NJP on 920228 vacated due to continued misconduct.

920820:  NJP for violation of UCMJ, Article 134: False or Unauthorized passes.
         Award: Forfeiture of $440 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
920929:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense evidenced by your service record.
921021:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
921203:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge general under honorable conditions.

930105:  Commanding officer recommended discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense.

930121:  BUPERS directed the applicant's discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930205 general under honorable conditions for misconduct due to commission of a serious offense (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

In the applicant’s issue he claims inequity based upon a lifelong stigma being imposed for a minor, discrete incident involving a fake identification card. Additionally, he cites regret over such an immature act.

The term "serious offense" should not be confused with what is considered serious in the civilian world. The Uniform Code of Military Justice (UCMJ) categorizes a wide range of offenses: disrespectful language, failure to obey a lawful order or written regulation, such as not maintaining hair within standards, drunken driving, forgery, missing ship's movement, unauthorized absence for 30 days or more, making false official statements, and so forth, right up to the most "serious" crimes of spying, aiding the enemy in time of war, mutiny, rape and murder. Although all of these offenses come under the broad UCMJ category of "serious offenses," some are clearly more heinous than others. A person in the military must abide by the standards as set forth in the UCMJ, regardless of what guidelines his civilian counterparts might utilize. While the board regrets that the applicant must live with the stigma associated with the term "serious offense," it cannot justify changing the reason for discharge unless it is inappropriate in describing the circumstances surrounding the applicant's discharge.

The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E). The applicant must be aware that there is no law or regulation that provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Washington Navy Yard
                  720 Kennon Street SE RM 309
                  Washington, D.C. 20374-5023     


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