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NAVY | DRB | 1999_Navy | ND99-00281
Original file (ND99-00281.rtf) Auto-classification: Denied


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

ex-FA, USNR
Docket No. ND99-00281

Applicant’s Request
The application for discharge review, received 981217, 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 990810. 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: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Commission of a Serious Offense, authority: NAVMILPERSMAN, Article 3630600.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. I am writting regarding the matter of my other than honorable discharge from the United States Navy. I enlisted to be involved in the Fireman Apprenticeship Program. At the time of enlistment I was told that I would to be trained in all fields of the Fireman Program. While on the U.S.S. Austin LPD-4 I was assigned in the boiler room which was part of the program. I asked how long I would be training as a boiler techican, my Chief told me six months and by doing the assigned book work. After six months and completing the required book work I asked again when would I be training in the other positions in the program. I was notified by my Master Chief and Lieutenant that I would have to reenlist in order to go into another position. In my opinion my enlistment under the Fireman Apprenticeship Program was not fullfilled to the extent of forcing me to either reenlist or to resign. For this reason I was extremely distraut which resulted in unfortunate circumstance leading to a other than honorable discharge. I know if I was able to take advantage of the full program as it was offered to me, at the time of enlistment. I would of served the remainder of my enlistment and possibly more. I urge you to reconsider the status of my discharge this was an extremley difficult time in my life that I would like to put behind me. Thank you for your attention to this matter.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214.
Statement from applicant dated 981111

PART II - SUMMARY OF SERVICE

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

Period of Service Under Review :
Date of Enlistment: 900228               Date of Discharge: 920330

 Length of Service (years, months, days):

         Active: 01 08 00
         Inactive: 00 05 03

 Age at Entry: 17                          Years Contracted: 8

Education Level: 12                        AFQT: 32

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (2)    Behavior: 3.30 (2)                OTA : 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM; SASM; SSDR

 Days of Unauthorized Absence: 1

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Commission of a Serious Offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

900801:  Applicant ordered to active duty for 36 months under Active Mariner Program.

910602:  NJP for violation of UCMJ, Article 92: Failure to obey other lawful order.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 60 days, reduction to E-1. No indication of appeal in the record.

910603:  Retention Warning: Advised of deficiency (Failure to obey other lawful order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920318:  NJP for violation of UCMJ, Article 86 (2 Specs): Unauthorized absence from unit and absent from place of duty from 0745, 920315 to 0615, 920317 (1 day, 22 hours and 30 minutes/surrendered).
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
920318:  Applicant notified of intended recommendation for discharge under Other Than Honorable Conditions by reason of Misconduct due to the Commission of a Serious Offense. [Extracted from CO’s message dated 920318.]
920318:          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. [Extracted from CO’s message dated 920318.]
920318:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of Misconduct due to the Commission of a Serious Offense. Commanding officer’s comments (verbatim): “A careful review of SNM’s service record indicates no further potential for Naval Service. SNM violated 91JUN03 PG 13 counselling warning by failing to adhere to the UCMJ. His behavior and repetitive violation of the UCMJ is intolerable. SNM has indicated no desire to stay in the Navy and would continue to be a burden to this command and the Navy. Because of misconduct due to Commission of a Serious Offense, I strongly recommend an administrative separation characterized as Under Other Than Honorable Conditions.”

920326:  BUPERS directed the applicant's discharge under Other Than 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 920330 under other than 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 issue 1, the Board found this issue to be without merit. The applicant’s Record of Military Processing states the specific option/program guaranteed upon enlistment was the Active Mariner Fireman Apprenticeship training program (3X8). The applicant completed a formal, four week Fireman training course 901030. The applicant continued to train in areas applicable to the Fireman rating once assigned to the USS AUSTIN (LPD 4). Additional Fireman training was at the discretion of the applicant’s command.

To permit relief, an error or injustice must be found to have existed during the period of enlistment under review. There was nothing in the records, nor did the applicant provide any documentation to indicate there existed an error of fact, law, procedure or discretion at the time of discharge. There was no rights violation and no basis for relief.

Although not raised as an issue, the following information is provided for the applicant’s edification. In addition to the service record, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge (F, Part IV). While it is true the applicant cannot go back and undo his prior mistakes, he does have the opportunity to contribute in a positive way to society and warrant clemency. Those contributions that would be looked upon favorably include educational pursuits, employment performance record, being a contributing member of society and making a positive impact in the community through volunteer work. The applicant must prove that his post-service conduct has been above reproach and he is making a valid attempt at making amends for the misconduct he committed during the period of service under review.

The 15 year window, during which time applicants may appeal their discharge, was established to allow time for establishing oneself in the community and for making these substantial, documented life style changes and community contributions. The applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received within 15 years from the date of discharge.


 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 – 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 92, Failure to Obey Other Lawful Order, 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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