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NAVY | DRB | 1999_Navy | ND99-00337
Original file (ND99-00337.rtf) Auto-classification: Denied


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

ex-DPSN, USN
Docket No. ND99-00337

Applicant’s Request
The application for discharge review, received 990108, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a documentary record discharge review. The applicant listed the Veterans of Foreign Wars of the United States as his 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 unanimously discerned that the discharge shall be changed to General (Under Honorable Conditions)/Secretary Plenary Authority, Article 3630900

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. Applicant was within 6 months of completing a 5 year enlistment. Applicant's performance marks were above average (3.0) for that period with exception of his last evaluation. Applicant served honorably during the Persian Gulf War.

Request this case be reviewed for fairness and equity. This case is referred to the Board for their usual careful and compassionate consideration.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Job/character reference dated October 29, 1998
Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):

          Active: None
         Inactive: USNR (DEP)     890131 - 890222  COG
        
Period of Service Under Review :
Date of Enlistment: 890223               Date of Discharge: 930819

 Length of Service (years, months, days):

         Active: 04 05 27
         Inactive: 00 00 00

 Age at Entry: 18                          Years Contracted: 4 (12 month extension)

 Education Level: 11                        AFQT: 54

 Highest Rate: DP3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.94 (7)    Behavior: 3.00 (7)                OTA: 3.23

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM, NUC, BER, SSDR

Days of Unauthorized Absence: 1

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

891003:          Unauthorized absence from place of duty from 0530 - 0730, 3OCT89 (2 hours).

900911:  Convicted in General District Court, Norfolk, VA of: 1. Expired state inspection, 2. Expired state tags, 3. No city License/decal.
         Sentence: Fined $60.00 plus court cost.
930624:  NJP for violation of UCMJ, Article 86 absent from place of duty from on or about 0545, 13JUN93 until on or about 0800, 14JUN93 (1 day/surrendered), violation of UCMJ, Article 92: Failure to obey a lawful order on 13Jun93, violation of UCMJ, Article 108 (2 specs): without authority sold military property belonging to the United States Navy, a value of over one thousand dollars, Violation of UCMJ, Article 121 (2 specs) stealing, a value of over one thousand dollars.
Award: Forfeiture of $600 per month for 2 months, restriction and extra duty for 45 days, reduction to DPSN. No indication of appeal in the record.
930624:  Retention Warning: Applicant advised of deficiency violation UCMJ, Articles 108 and 121, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
930707:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
930707:          Applicant advised of his rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation. Applicant did not object to separation.
930712:  Commanding officer recommended discharge with a characterization type warranted by service record due to commission of a serious offense.

930804:  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 930819 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 improperly executed and therefore inequitable (D and E). Specifically, the same day the applicant was found guilty of commission of a serious offense, the executing command issued a retention warning, hence offering the applicant a second chance. Despite the retention warning, the applicant was processed for separation based on the NJP.

Although not raised as an issue, the Board finds that an administrative error occurred in the applicant's discharge. Specifically, the issuance of a retention warning on the same day as the NJP, which made the discharge improper. Due to this error, the Board grants relief with a change in discharge to General Under Honorable Conditions/Secretary Plenary Authority, Article 3630900 (F). Characterization of General was based on the applicant’s service record.

Relief based on grounds that the applicant was within six months of EAOS is not warranted.

Relief based on the applicant's performance evaluations is not warranted.

Relief based on the applicant’s service during the Persian Gulf War is not warranted.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective
05 Mar 93 until 21 Jul 94, 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 general order or regulation, Article 108: Military property; loss, damage, destruction, disposition, selling, otherwise disposing, of value more than $100.00 and Article 121: Larceny, of value over $100.00, 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.
F.       Naval Military Personnel Manual, (NAVPERS 15560C, Change 7, effective 30 Jul
93 until 21 Jul 94), 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 Street SE Rm 309
                  Washington, D.C. 20374-5023     

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