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NAVY | DRB | 1999_Navy | ND99-00053
Original file (ND99-00053.rtf) Auto-classification: Denied


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

ex-AN, USNR
Docket No. ND98-00053

Applicant’s Request
The application for discharge review, received 981006, 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)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. To: Whom it may concern: My name is (applicant) I was discharge for misconduct. My discharge wasn't base on my service in the Navy. Certain high ranking officers were prejudice against me because of my second misconduct. Such as my Air Boss, Mini Boss and my Division Officer. Certain officers threaten to harm me and my career. But I did nothing about because I was scared so I decided to go to DAPA and tell them I was an alcoholic so they would send me away from the boat for a while. But my division officer used it to kick me. While serving on aboard the USS Nimitz got into trouble two times. The first time was for having a false Identification which was my military I.D. I was guilty of that so I went to Captian Mass I recieve 15 days extra duty. My second misconduct came shortly after we reach Thailand. Which a girl accused me and two other guys of raping her. I was the only one that was offically charge with rape but it was later lowered to Sexual Assualt without intent to harm. But that wasn't my only charge, they charge me with indecent acts, and exposure plus U.A. Truthfully I didn't think I was guilty of the charges but I was guilty of the UnAuthorize Absent from the ship. Anyway We went to captain Mass we recieve 15 days restriction and 15 days extra duty. I did my time but some high ranking officers thought I got off with a light punishment they didn't like that. My division Officer gave me bad evaluations on purpose so I would look like I was of no use the Navy. My other evaluation were not bad except for the one I got for going to Captain Mass the first. LT H_ that my Division Officer he was being prejudice against me because of what I did but he didn't even bother to ask me my side of the story. He and other officers drawed their own conclusion of what kind of sailor I was. If I was such a bad worker like everybody said I was especially my division Officer why did he keep me in his division doing the same work which was 3-M and Damage Control. Why didn't he send me back to my old Division V-4. I was only sent back when I was getting admin sep out of the navy. Still when I got back in my old division I did the same work their. If didn't know what I was doing then don't you think I would have warning in my service record. I know I have real potenial to become a great assent to Naval Servic. I would appeciate if you would take inconsideration my remendation and upgrade my discharge to a honorable and my code to a R-1. Thank you

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from applicant dated September 1, 1998
Character reference dated August 7, 1998
Job/character reference dated July 30, 1998
Character reference from pastor from Eagle Life Ministries International dated August 20, 1998
Character reference dated August 18, 1998
Character reference dated August 18, 1998
Copy of DD Form 214
Seven pages from applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     931226 - 940621  COG

 Period of Service Under Review :
Date of Enlistment: 940622               Date of Discharge: 970116

 Length of Service (years, months, days):

         Active: 02 06 25
         Inactive: None

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 32

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (1)    Behavior: 4.00 (1)                OTA: 3.80 (4.0 eval)

 Performance: 4.00 (1)    Behavior: 3.00 (1)                OTA: 3.17 (5.0 eval)

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, NER, NDSM, AFEM, SSDR

 Days of Unauthorized Absence: 3

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

960224:  NJP for violation of UCMJ, Article 134: False or unauthorized pass offense on 26 January 1996.
         Award: Forfeiture of $150 per month for 1 month, extra duty for 15 days, and oral admonition. Forfeiture suspended for 6 months. No indication of appeal in the record.
960226:  Retention Warning: Advised of deficiency (Violation of the Uniform Code of Military Justice, Article 134, wrongfully possess, with intent to deceive, a false and unauthorized Armed Forces Identification Card on 26 January 1996.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960506:  NJP for violation of UCMJ, Article 86: Unauthorized absence 0700, 96Apr20 until 0700, 96Apr23; violation of UCMJ Article 128: Assault consummated by a battery on 96Apr23; violation of UCMJ Article 134: Wrongfully commit an indecent act on 96Apr23.
         Award: Forfeiture of $509 per month for 1 month, restriction and extra duty for 15 days, reduction to E-2. Forfeiture of $259 for 1 month and reduction suspended for 6 months. No indication of appeal in the record.
960813:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of serious offenses as evidenced by your violation of the UCMJ, Article 128, assault consummated by a battery on 23 April 1996, Article 134, false or unauthorized pass offense on 26 January 1996, and Article 134, wrongfully committing an indecent act on 23 April 1996; and by reason of misconduct due to a pattern of misconduct as evidenced by your two or more punishments under the UCMJ in violation of an administrative counseling/warning page 13 within your current enlistment.
960813:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
960930:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to commission of a serious offense and a pattern of misconduct, that the misconduct warranted separation, and by a vote of 2 to 1 recommended discharge general (under honorable conditions).
970907:  Commanding officer directed discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct. Commanding officer’s comments: (verbatim): I have determined that your discharge from the Naval service by reason of misconduct due to commission of a serious offense and by reason of misconduct due to a pattern of misconduct is warranted and so ordered. Discharge shall be characterized as General (Under Honorable Conditions) and the appropriate reenlistment code shall be assigned by the Personnel Office. Completed discharge package sent to BUPERS.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970116 general (under honorable conditions) for misconduct due to a pattern of misconduct (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).

The applicant states that “high ranking officers were prejudiced against me.” The Board disagrees with this statement. The Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby. Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant.

In response to the applicant’s issue that his “discharge wasn’t base (sic) on my service in the Navy”, the Board found that the characterization does properly reflect his service to the Navy. The applicant would normally have a received a discharge of other than honorable for his misconduct as evidenced by the pattern of misconduct. However, an Administrative Discharge Board saw fit to grant leniency to the applicant when they characterized his discharge as GENERAL (UNDER HONORABLE CONDITIONS). Relief is not warranted.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 14, effective 03 Oct 96 until 30 Jun 97), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT.

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 St SE Rm 309
                  Washington, D.C. 20374-5023     


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