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NAVY | DRB | 1999_Navy | ND99-00197
Original file (ND99-00197.rtf) Auto-classification: Denied


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

ex-BTFR, USN
Docket No. ND99-00197

Applicant’s Request
The application for discharge review, received 981119, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. The applicant requested a personal appearance hearing review before a traveling panel closest to Houston, TX. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991012. 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 and reason of the discharge shall change to: UNDER HONORABLE CONDITIONS (GENERAL)/SECRETARIAL AUTHORITY: NAVMILPERSMAN, Article 3630900.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues
 1.       It is my contention that during the time of my service I was very immature and and had little experience in dealing with the real world or real world problems. Without these necessary skills I was unable to cope with the pressures of military life in a positive manner and exhibited self-destructive behavior in the form of several violations of the UCMJ.
2.       It is also my contention that I am no longer this person. But am now a responsible member of my community.
3.       However, it is still my belief that a relationship based upon personal inemity existed between my division officer, CWO S, and myself That we both exhibited equally unprofessional attitudes and behavior that became the catalyst that led to my discharge. There were several incidents of personal insults, threats and even an attempt to get me to strike said officer that was witnessed by my Division Chief, who's name I do not recall, and Leading Petty Officer, BT1 C, in the Water/Oil Lab of the USS Hoet. And lastly an incident on the Quarterdeck with CWO S insulting, cursing and being abusive to my civilian fiance' that was witnessed by the entire watch team.
4.       While I do believe that this relationship existed, (but at this late day I cannot think of any way to prove that it did) I maintain that this doesn't excuse my behavior on board said vessel, but it does go a long way to explaining it. I should have been above such pettiness but blame youth and immaturity for my actions. I would not be affected in such a way now.
5.       1 did have prior outstanding service of 3 years in ROTC, my last year as Executive Officer for my unit at Sam Rayburn High School, Pasadena, 'IX. While this doesn't count for much in the fleet it does indicate that I had a good indoctrination to the U.S. Navy and SHOULD have been able to make a better transition than I did.
6.       1 also had 1 year of service in the United States Army Reserve prior to transferring to the U.S. Navy. My discharge from my Reserve unit was characterized as Honorable. And I served as a squad leader in both Army Boot Camp at the 10th NW Battalion, Ft McClellan, Al and at the 304th ASA Bn HHC, Pasadena, Tx.
7.       My service in the Navy was marked by many instances of mv taldn leadership positions and volunteering for extra duties that others found onerous. I was a Recruit Section Leader and Recruit Master at Arms in Boot Camp, and have served on board the USS Hoel in the following aspects in addition to my regular duties. Supply Petty Officer-B-Div, Maintenance Petty Officer #1 Fire room, Safety Petty Officer #1 Fire room, Heat Stress Petty Officer - EngineerinLy DeDt and #2 Nozzleman for Repair 5, both in port and underway. Many of these duties required me to work extremely extended hours, to be available at all times for the slightest problem. Often I have come in from my home off base on non-duty nights at odd hours to perform after hours requisition of parts for the fire room, and on some occasions, the engine rooms, because I was the best Supply Petty Officer in the Engineering Department. (As per my Chief, my LPO, and the Chief of the Supply Dept.). I regularly used my personal vehicle to retrieve supplies and parts from as far away as North Island Naval Air Station. On a one day liberty in the Phillipines I spent my time searching for, requisitioning, and trading anything I could get hold of ear plugs so the Engineering Department would have them (ear plugs, for some reason, were in short supply throughout the fleet at that time). So we could continue to operate without causing harm to the Hoels Snipes. Everybody else was on liberty that day.including the officer who wrote me up for missing the mandatory PT session that evening. Do you wonder why I developed a bad attitude?
8.       1 have completed one semester of General Education at San Jacinto Community College with a 3.5 gpa. I maintained this average while attending school full time and working full time to support myself and my grandmother.

9.       Which brings us to the reason that I've waited so long to do this. After I left the Navy I worked for 3 years on various Merchant and Supply vessels. I came ashore when my grandmother, who is the person who raised me, had a stroke and couldn't care for herself. I found work shoreside and took care of her up until last year when her needs exceeded my ability. She passed away six months ago and I am now free to pursue my education without having to worry about her.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Employment reference letter
Letter from applicant
Charge explanation letter (2pgs)
Conclusion Letter


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
          Inactive: USNR (DEP)     851221 - 860714  COG

 Period of Service Under Review :
Date of Enlistment: 860715               Date of Discharge: 891019

 Length of Service (years, months, days):

         Active: 03 03 05
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 11                        AFQT: 85

 Highest Rate: BT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (1)    Behavior: 3.60 (1)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDRwb*, AFEM

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

870408:  Retention Warning from SSC, GREAT LAKES, IL: Advised of deficiency (Poor Military Performance), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

870408:  NJP for violation of UCMJ, Article 121: Theft from Navy Exchange.
         Award: Forfeiture of $75 per month for 1 month. No indication of appeal in the record.

881231:  NJP for violation of UCMJ, Article 92: Failed to obey a lawful order issued by an officer.
         Award: Restriction to USS HOEL (DDG-13) for 10 days, extra duty for 10 days, reduction to E-3 (suspended for 6 months) . No indication of appeal in the record.
890303:  NJP for violation of UCMJ, Article 121: Wrongfully appropriate a Flight Jacket, of a value of about $99.05, the property of the U.S. Government.
         Award: Forfeiture of $200 per month for 2 months, restriction to USS HOEL (DDG-13) for 45 days, extra duty for 45 days, reduction to E-2, vacate previous NJP of 881231. No indication of appeal in the record.
890821:  NJP for violation of UCMJ, Article 86: UA from appointed place of duty, to wit: Mandatory PT.
Award: Restriction to USS HOEL (DDG-13) for 60 days. No indication of appeal in the record.
890913:  NJP for violation of UCMJ, Article 92: Dereliction in the performance of his duties in that he failed to stand a proper watch.
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 20 days, reduction to E-1 (suspended for 3 months). No indication of appeal in the record.

890919:  USS HOEL (DDG-13) notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by three or more NJP's during your current enlistment, and by commission of a serious offense for violation of UCMJ, Article 121, wrongful appropriation of a Flight Jacket from the supply system.
890919:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

890928:  NJP for violation of UCMJ, Article 86: UA from appointed place of duty.
         Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 20 days, reduction to E-1. No indication of appeal in the record.
891006:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by three or more NJP's during current enlistment and by commission of a serious offense for violation of UCMJ, Article 121, wrongful appropriation of a Flight Jacket from the supply system.

891013:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 891019 under other than 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 improper (C and D). The character and authority of discharge shall change to Under Honorable Conditions (General)/ SECRETARIAL AUTHORITY, NAVMILPERSMAN 3630900 (E).

The NDRB upon thorough review of the applicant’s case found the discharge was improperly executed under Ref (A). Although the applicant had a significant pattern of misconduct, as evidenced by six NJP’s during enlistment, the parent command did not properly issue a retention warning in compliance with ref (A).


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), 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.

E. . Naval Military Personnel Manual, (NAVPERS 15560A, Change 7, effective 25 May 89 until 21 Mar 90), Article 3630900, SEPARATION IN THE BEST INTEREST OF THE SERVICE.

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     


RECORD OF VOTE

 BOARD MEMBER                       CHARACTER                 BASIS/REASON








D.L. STOVER-KENDRICK, Col, USMC Relief warranted         Relief warranted
President





W. BURKE, CDR, USN                Relief warranted                  Relief warranted
Member





P.A. CRONIN, LT, USN              Relief warranted                  Relief warranted
Member





L.J. NEVEL, LT, USN Relief warranted              Relief warranted
Member
C. BUCHHEISTER, LCDR, USN        Relief warranted                  Relief warranted
 Recorder


 A. The Naval Military Personnel Manual, (NAVPERS 15560A, Change 8, effective 21 Aug 89 until 14 Aug 91) Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT, states:

1. Basis. A member may be separated for misconduct when it is determined, under MILPERSMAN 3610200, that a member is unqualified for further military service by reason of one or more of the following circumstances:

a. 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 warrant a punitive discharge and not drug related) documented in the service record, within the current enlistment, which have been disciplined by not more than two (2) punishments under the UCMJ. The member must have violated counseling (3630600.2) prior to initiating processing. If the presented case exceeds these limits, including three or more periods of unauthorized absence of more than 3 days duration each, then process for pattern of misconduct or commission of a serious offense. Process drug abuse cases in accordance with MILPERSMAN 3630620. 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 processing due to a pattern of misconduct, or commission of a serious offense, the processing should be under Entry Level Performance and Conduct (MILPERSMAN 3630200).

b. A Pattern of Misconduct.

(1) A pattern of misconduct is defined in part as discreditable involvement with civil and naval authorities as evidenced by one or more of the following:

 (a) Two or more minor civilian convictions within the current enlistment, the latest civilian conviction and counseling to have occurred while assigned to the parent command. (Separation activities defined in MILPERSMAN 3640476, and other commands to which TEMDU is authorized by Commander, Military Personnel Command (COMNAVMILPERSCOM), are exempt from this requirement). Members should be dual processed for misconduct due to commission of a serious offense and misconduct due to civilian conviction where appropriate.

(b) Three or more punishments under the UCMJ within the current enlistment, the latest offense and counseling to have occurred while assigned to the parent command. (Separation activities defined in MILPERSMAN 3640476, and other commands to which TEMDU is authorized by COMNAVMILPERSCOM , are exempt from this requirement). Members should be dual processed for misconduct due to commission of a serious offense and misconduct due to civilian conviction where appropriate.

(c) Any combination of three minor civilian convictions misdemeanor(s) and or punishment(s) under the UCMJ within the current enlistment, the latest offense and counseling to have occurred while assigned to the parent command. (Separation activities defined in MILPERSMAN 3640476, and other commands to which TEMDU is authorized by COMNAVMILPERSCOM, are exempt from this requirement). Members should be dual processed for misconduct due to commission of a serious offense and misconduct due to civilian conviction where appropriate.

(d) Three or more periods of unauthorized absence of more than 3 days duration each within the current enlistment, the latest offense and counseling to have occurred while assigned to the parent command. (Separation activities defined in MILPERSMAN 3640476, and other commands to which TEMDU is authorized by COMNAVMILPERSCOM, are exempt from this requirement). Members should be dual processed for misconduct due to commission of a serious offense and misconduct due to civilian conviction where appropriate.

(e) Nine or more violations (e.g., specifications) of the UCMJ within the current enlistment which have been disciplined by punishment under the UCMJ. The latest offense and counseling to have occurred while assigned to the parent command. (Separation activities defined in MILPERSMAN 3640476, and other commands to which TEMDU is authorized by COMNAVMILPERSCOM, are exempt from this requirement). Members should be dual processed for misconduct due to commission of a serious offense and misconduct due to civilian conviction where appropriate.

(2) A member may also be separated for misconduct due to a pattern of misconduct as evidenced by:

(a) A set pattern of failure to pay just debts. (Include financial statement prepared as specified in MILPERSMAN 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. Commission of a serious offense. Commission of a serious military or civilian offense, if:

(1) The specific circumstances of the offense warrant separation; and,

(2) A punitive discharge would be authorized by the Manual for Courts-Martial for the same or a closely related offense. Note that:

(a) If basis for offense is evidenced by a 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 discharge board. See Article 3610200.5a.

(b) I basis for offense is evidence solely by a court-martial conviction and the court-martial convening authority has remitted or suspended a punitive discharge, forward case to the same convening authority for endorsement according to MILPERSMAN 3610200.5b.

(d) Civilian conviction

(1) Conviction by civilian authorities, or action taken which is equivalent to a finding of guilty, including similar adjudication in juvenile proceedings, when the specific circumstances of the offense warrant separation and, (1) a punitive discharge would be authorized for the same or closely related offense under the Manual for Courts-Martial, or (2) the sentence includes confinement for six months or more without regard to suspension or probation. In all cases, advise whether the member has appealed the conviction or not and, if not, the time limit within which member has to file a appeal. In addition, if the member has appealed, advise of its outcome or anticipated decision date.

(2) Separation processing may be initiated whether or not a member has filed an appeal of a civilian conviction or has stated an intention to do so. However, execution of an approved separation shall be withheld pending outcome of the appeal or until the time for appeal has passed, unless the Chief of Naval Operations, the Commandant of the Marine Corps, or the member has requested separation and such a requests have been approved by the Secretary of the Navy, who may direct that the member be separated before final action in the appeal.

(3) Misconduct due to civilian conviction. If member is convicted of a felony which includes a sentence to confinement for more than 1 year (whether suspended or not), or an offense involving sexual perversion, processing is mandatory.

2. Counseling and rehabilitation

a. Separation processing for a series of minor disciplinary infractions or a pattern of misconduct may not be initiated until the member has been counseled by his or her parent command concerning deficiencies and has been afforded an opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records. Only one counseling entry during the current enlistment by the parent command is required. Such efforts shall include the following and be documented in the member's service record by Page 13 entry (see NAVMILPERSCOMINST 1910.1).

(1) Written notification concerning deficiencies or impairments.

(2) Specific recommendations for corrective action indicating any assistance available.

(3) Comprehensive explanation of the consequences of failure to under take successfully the recommended corrective action.

(4) Reasonable opportunity for the member to undertake the recommended corrective action.

b. Counseling and rehabilitation are not required if the reason for misconduct separation is commission of a serious offense, civilian felony conviction or a similar juvenile adjudication.

3. Characterization or Description. Normally under Other Than Honorable Conditions, 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 and the separation is approved by Commander, Naval Military Personnel Command, or higher authority. When characterization of service under Other Than Honorable Conditions 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 service member serving in paygrade E-4 or above is administratively separated with an Other Than Honorable characterization of service, the member shall be administratively reduced to paygrade E-3, such reduction to become effective upon separation.

5. Procedures

a. The Administrative Board Procedure (MILPERSMAN 3640300) shall be used; however, use of the Notification Procedure (MILPERSMAN 3640200) is authorized for use when processing members for misconduct due to minor disciplinary infractions or if characterization of service under Other Than Honorable Conditions is not warranted as described in MILPERSMAN 3610300.3c.

b. When a member is processed for separation for a commission of a serious offense or civilian conviction, the Administrative Board Procedure (MILPERSMAN 3640300) shall be used.

c. Request that the member execute a signed statement of awareness and request for or waiver of rights after his or her receipt of the Notice of Administrative Board Procedure Proposed Action. Use the Notification Procedure (MILPERSMAN 3640200) in the case of members processed for misconduct due to minor disciplinary infractions, or misconduct due to a pattern of misconduct wherein a general discharge is deemed appropriate.

d. Forward the processed case by letter of transmittal [or message] to Commander, Naval Military Personnel Command (NMPC-83). Ensure member's full name, rate and SSN have been indicated on each page of the case. Refer to NAVMILPERSCOMINST 1910.1 for message submission option.

Note that if basis for offense is evidenced solely by a court-martial conviction and the court-martial convening authority has remitted or suspended a punitive discharge, forward case to the same convening authority for endorsement in accordance with MILPERSMAN 3610200.5.

e. Misconduct involving homosexuality shall be processed in accordance with MILPERSMAN 3630400. Misconduct involving a fraudulent entry shall be processed in accordance with MILPERSMAN 3630100. Misconduct involving drug abuse shall be processed in accordance with MILPERSMAN 3630620.

f. A member who is absent without authority may be processed under this article without returning to military control in the following circumstances:

(1) Absent without authority after receiving notice of initiation of separation processing.

(2) When prosecution of the member appears to be barred by the Statute of Limitations, Article 43 UCMJ, and the statute has not been tolled by any of the conditions set out in Article 43(d).

(3) When the member is an alien and appears to have gone to a foreign country where the United States has no authority to apprehend the member under treaty or other agreement.

g. A member of a reserve component who is on active duty and is within two years of becoming eligible for retired pay or retainer pay under a purely military retirement system, may not be involuntarily released from that duty before he or she becomes eligible for that pay, unless his or her release is approved by the Secretary of the Navy.

h. In such cases as described in subparagraphs (2) and (3) of paragraph 4f, the Notice required in either MILPERSMAN 3640200 or 3640300 shall:

(1) Specify date (not less than 30 days from the date of delivery of the notice) in order to give the member the opportunity to return to military control and, if the member does not return to military control by such a date, that the separation process shall continue.

 (2) Be sent to the member by registered mail or certified mail, return receipt requested (or by an equivalent form of notice if such service by U.S. Mail is not available for delivery at an address outside of the United States) to the member's last known address or the next of kin.

 E. Naval Military Personnel Manual, (NAVPERS 15560A, Change 7, effective 25 May 89 until 21 Mar 90), Article 3630900, SEPARATION IN THE BEST INTEREST OF THE SERVICE, states:

1. Basis. Regardless of any limitation on separations published in this Manual, the Secretary of the Navy may in his discretion, direct the separation of any member prior to the expiration of a term of service.

a. In those cases where no other reason for separation set forth in this Manual is appropriate, but where separation of a member is considered to be in the best interest of the Service, separation processing may be initiated in the best interest of the Naval Service.

b. In those cases initiated under another reason for separation, the Secretary may in his discretion, direct separation for that other reason. Separation authorities recommending this action must provide specific supporting rationale.

2. Characterization. Honorable or General by guidance provided in MILPERSMAN 3610300, except when an Entry Level Separation is appropriate.

3.       Procedures
a. The Notification Procedure (MILPERSMAN 3640200) shall be used. In addition the notice shall:

(1)      Explain why separation of the member is in the best interests of the Naval Service; and
(2)      State that no other reason for separation in this Manual is considered appropriate and why.
b. When separation is for this reason, the right of a member with 6 or more years of total active and reserve naval service to request an Administrative Board is not applicable.

c. Request the member execute a signed statement of awareness and request for or waiver of rights after his or her receipt of the Notification Procedure.

d. Forward processed case by letter of transmittal to Commander, Naval Military Personnel Command (NMPC-83). Ensure member’s full name, rate, and SSN have been indicated on each page of the case.

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