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NAVY | DRB | 1999_Navy | ND99-00201
Original file (ND99-00201.rtf) Auto-classification: Denied


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

ex-RMSR, USN
Docket No. ND99-00201

Applicant’s Request
The application for discharge review, received 981119, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to convenience of the government, and change the re-enlistment code to RE-1. 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 991011. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board’s vote was unanimous that the character and reason for discharge shall change. The discharge shall change to: UNDER HONORABLE CONDITIONS(GENERAL)/Secretarial Plenary Authority, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.       Under current standards, I would not receive the type of discharge I did. I willingly takes orders and follow the instructions of my supervisors.
2.       My average conduct and efficiency rating/behavior and proficiency marks are good. My efficiency rating were 3.0 for reliability, 3.0 for knowledge, 3.0 for military bearing, 2.8 for personal evaluation, overall rating 2.87.
3.       I received awards and decorations. Some of the awards I received were Southwest Asia Medal, National Defense Service Metal, Operation Desert Storm Shield, and Sea Service Deployment Ribbon.
4.       I was close to finishing my tour and it was unfair to give me a bad discharge. I was discharged in January of 92 and my formal discharge would have been up in 93.
5.       My record of AWOL indicates only minor or isolated offenses. I had five AWOL's and some of these were with valid excuses.
6.       My ability to serve was impaired by my youth and immaturity. Oftentime when we are young we make mistakes that we normally wouldn't do if we were an adult. This is not to be used as a reason or excuse for AWOL's or missed behavior but rather as a learning tool.
7.       Personal problems impaired my ability to serve. I was young and had some personal problems which affected my decision process.
8.       The punishment I got was to severe compared with today's standards. Hopefully in today's standards there is room for error.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Employment Reference Letter
Character Reference Letter from wife
Character Reference Letter from friend
Certificate of Ordination
Letter from applicant
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     890822 - 891003  COG

 Period of Service Under Review :
Date of Enlistment: 891004               Date of Discharge: 920117

 Length of Service (years, months, days):

         Active: 02 03 14
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 31

 Highest Rate: RMSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (3)    Behavior: 2.80 (3)                OTA: 2.86

 Military Decorations: None

 Unit/Campaign/Service Awards: SWASM, NDSM (Operation Desert Storm Shield), SSDR

Days of Unauthorized Absence: 24

 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 :

900427:  NJP for violation of UCMJ, Article 86: Failed to go to appointed place of duty on 900406 and 900407.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 3 days. No indication of appeal in the record.

910121:  NJP for violation of UCMJ, Article 86: UA 901202 and 901209.
Award: Restriction for 15 days. No indication of appeal in the record.
910415:  NJP for violation of UCMJ, Article 86: UA from 910228 to 910309(9days/S).
Award: Restriction and extra duty for 15 days. No indication of appeal in the record.
910607:  Retention Warning from USS PYRO (AE-24): Advised of deficiency (Commanding Officer's NJP's held on 900427, 910121, and 910415, you were found guilty of the following offenses: Violation of UCMJ Article 86( Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910701:  NJP for violation of UCMJ, Article 86: Failed to go to appointed place of duty, violation of UCMJ, Article 92: Failure to obey other lawful order.
Award: Restriction and extra duty for 15 days. No indication of appeal in the record.
911112:  NJP for violation of UCMJ, Article 91: (2 Specifications), Insubordinate conduct toward a Petty Officer, violation of UCMJ Article 92: Failure to obey or regulation, violation of UCMJ Article 128: Assault.
Award: Forfeiture of $422 per month for 1 month, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
XXXX:    C ounseling Warning : Advised of deficiency (Insubordinate conduct toward a petty officer, failure to obey order or regulation, and assault), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning :

911126:  USS PYRO (AE-24) 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 five Non-Judicial Punishment hearings, on 900427, 910121, 910415, 910701 and 911112, during this enlistment.
911216:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

911230:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

 920102:  To UA.

 920107:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

920117:  From UA (15days/S)
920203:  BUPERS Authorization to discharge applicant in absentia.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920117 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 and inequitable (C and D).

The Board found that the discharge was improper for misconduct – pattern of misconduct because the applicant did not violate his latest retention warning, issued from his command and after his last non-judicial punishment. The Board therefore grants relief by changing the discharge to SECRETARIAL PLENARY AUTHORITY with characterization of Under Honorable Conditions (General).

For edification, the Board has no authority to change re-enlistment codes or make recommendations to permit re-entry into the Naval Service or any other of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to re-enlistment. A request for waiver is normally done only during the processing of a formal application for enlistment.

 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 – A PATTERN OF MISCONDUCT.

X. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article [e.g., 86, for unauthorized absence for a period in excess of 30 days] if adjudged at a Special or General Court-Martial.

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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