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NAVY | DRB | 1999_Navy | ND99-00078
Original file (ND99-00078.rtf) Auto-classification: Denied


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

ex-AR, USNR
Docket No. ND99-00078

Applicant’s Request
The application for discharge review, received 981020, 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 990927. 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 (verbatim)

1.       “Due to the voluntary statement I filled against MS2 H_ there was no legal action taken against her, but I was sent to Captains Mast for saying bitch out of anger.”
2.       “Why did I receive a counseling report on Oct 13 TH , for a condition my supervisor was already aware of and knew I had been to medical for this problem.”
3.       “When I had a rash on my feet why did I have to go through Supervised Showers, and in front of all the other girls in the berthing, I was also on a very tight time limit.”
4.       “It states on the counseling form that this is not intended to embarrass or infringe on her privacy, yet when the girls in the berthing were laughing and telling others on board I was embarrassed and my privacy was infringed on, I couldn't eat on the mess deck without someone pointing and saying that’s the one.”
5.       “The navy was treating this condition as a bacterial infection. The military gave me E-mycin 250mg clotrincyole cream B/D to feet, then they gave me Mycelex cream B/D #1 and Domboro Soaks QNS, after being sent home my dr gave me Nizoral 2% cream to use, he told me that the way I was treated in the military was not fair. I had a fungal infection not a bacterial infection.”
6.       “So based on all of this I feel I should have 1) either not been discharged or 2) feel it should have at least been a medical discharge.”
7.       “I don't understand why my DD214 says misconduct.”
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies of DD Form 214(2)
Copies from Medical Record (18pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR            None

 Period of Service Under Review :
Date of Enlistment: 940926               Date of Discharge: 960319

 Length of Service (years, months, days):

         Active: 01 02 29
         Inactive: 00 03 00

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 12                        AFQT: 34

 Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, AFEM, NAVY"E"RIBBON

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 :

941221:  Enlisted in the Airmen Apprenticeship program for 3 years.

 960102:  NJP for violation of UCMJ, Article 91 (2 specs): Willful disobedience of a PO2 on 951210 and disrespect toward a PO2 on 951210, violation of UCMJ Article 92: Willful dereliction in the performance of duties on 951210.
         Award: Forfeiture of $427 per month for 2 months ($427 per month for 1 month suspended for 6 months), restriction and extra duty for 30 days, reduction to E-1. No indication of appeal in the record.

960105:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 91 (2 specifications), willfully disobeying a lawful order from a PO2 on 951210, and being disrespectful in language and deportment toward a PO2 on 951210; and Article 92, willfully derelict in the performance of your duties between 951201 and 951210). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
960127:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful written order by wrongfully leaving personal gear adrift on her assigned bunk on 960113.
         Award: Restriction and extra duty for 30 days. No indication of appeal in the record.
960127:  Vacate forfeiture of $427 per month for 1 month suspended at previous CO's NJP on 960102 due to continued misconduct.
         
960129:  Applicant notified of intended recommendation for discharge General (under Honorable conditions), by reason of Misconduct, due to the Commission of a Serious Offense.
960129:          Applicant advised of her rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to waive all rights except the right to submit a written statement on own behalf and to obtain copies of the documents used to support the basis for the separation.
960202:  Commanding officer recommended discharge General (under Honorable conditions), by reason of Misconduct, due to the Commission of a Serious Offense.

960223:  BUPERS directed the applicant's discharge General (under Honorable conditions), by reason of Misconduct, due to Commission of a Serious Offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960319 General under Honorable conditions for Misconduct due to Commission of a Serious Offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

In the applicant’s issues 1 and 2, the Board found these issues to be without merit. The mandate of the NDRB is to determine if the discharge of an applicant was proper and equitable, not to resolve grievances. It is the discretion of each command to determine when to counsel or punish a service member, or what to punish a service member for, according to regulations. The Board found nothing in the records, nor did the applicant provide anything to indicate or show that there exists an error of fact, law, procedure or discretion associated with her discharge at the time of its issuance or that her rights were prejudiced. Additionally, 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. Relief denied.

In the applicant’s issues 3, 4 and 5, the Board found these issues to be without merit. These issues were not the basis of the applicant’s discharge. The issues, at stated, are grievances against her command/Commanding Officer and not issues of impropriety of inequity related to her discharge. The NDRB is not the forum to resolve these issues. They should be handled through your Congressman or the Board of Correction of Naval Records. Relief denied.

In the applicant’s issues 6 and 7, the Board found these issues to be without merit. The applicant was discharged for misconduct due to commission of a serious offense. She specifically violated UCMJ, Article 91 (2 Specifications), Article 92 on two separate occasions, which could have resulted in a punitive discharge vice a General (under Honorable conditions). She violated a retention warning issued on 5JAN96 and had non-judicial punishment on two occasions. The applicant’s discharge was proper and equitable. Relief denied.

 Pertinent Regulation/Law (at time of discharge)

 A. 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 – COMMISSION OF A SERIOUS OFFENSE.

 B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 91: Willfully disobeying a Petty Officer and disrespect towards a Petty Officer, and Article 92: Failure to obey a lawful order or regulation, 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 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. 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.

E. 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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