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NAVY | DRB | 1999_Navy | ND99-00365
Original file (ND99-00365.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND99-00365

Applicant’s Request
The application for discharge review, received 990119, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant did not list a 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 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.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1: Applicant’s record of promotions showed he was generally a good service member.

2: Applicant has been a good citizen since discharge.

3: Applicant’s record of NJP’s/ Article 15’s indicates only minor offenses.

4: Applicant’s ability to serve was impaired by youth and immaturity.

5: Applicant’s personal problems impaired his ability to serve.

6: Applicant’s financial problems impaired his ability to serve.

7: Applicant tried to serve and wanted to serve, but just couldn’t or wasn’t able to.

8: Applicant applied or tried to apply for a compassionate reassignment but was unfairly denied or told to forget it.

9: Applicant’s enlistment option was not satisfied or waived. Applicant joined to get into electronics and ended up being a barber.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214.
 Employer’s ltr of reference dtd 22 Aug 96
Employer’s ltr of reference (no date)
Sandy City Business license
Excerpts from Military Service Record- previously reviewed by NDRB

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     840315-840506    COG

 Period of Service Under Review :
Date of Enlistment: 840507      Date of Discharge: 860820

 Length of Service (years, months, days):

         Active: 02 03 13
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 12                        AFQT: 58

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (2)    Behavior: 3.30 (2)                OTA : 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

 Days of Unauthorized Absence: 22

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 :

840314: Applicant acknowledges understanding the Navy Drug Policy on the Navy Drug Abuse Screening Certificate.

840315: Applicant acknowledges understanding of Navy urinalysis program. Applicant acknowledged understanding that a positive result will result in discharge

840508: Applicant certifies understanding of Drug and Alcohol Abuse Policy.

850228:  NJP for violation of UCMJ, Article 91: Disrespectful in language towards a superior petty officer, violation of UCMJ Article 134 (2 Specs): Spec 1- Drunk and disorderly, Spec 2- Wrongfully communicate a threat.
         Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 15 days. Reduction to SR. Reduction suspended for 6 months. No indication of appeal in the record.
851008:  NJP for violation of UCMJ, Article 128: Assault; violation of UCMJ Article 134: Drunk and disorderly.
         Award: Forfeiture of $361 per month for 1 month, restriction and extra duty for 30 days. Restriction and extra duty suspended for 6 months. No indication of appeal in the record.
860411:  NJP for violation of UCMJ, Article 86: Unauthorized absence (3 Specs); Spec 1- UA from 0650, 860304 to 0535, 860306 (1 day), Spec 2- Unauthorized absence from 0700, 860310 to 0545, 860401 (21 days/surrendered), Spec 3- Failure to go to appointed place; violation of UCMJ Article 90: Disobeying the lawful order of a superior commissioned officer.
         Award: 30 days correctional custody, reduction to SA. No indication of appeal in the record.
860513:  CAAC found applicant to be drug and alcohol abuser who does not appear to be dependent on drugs or alcohol. Recommended Level II treatment.
860606:  NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana as verified by NAVDRUGLAB Oakland, CA MSG DTG 232146Z APR 86.
         Award: Forfeiture of $319.50 per month for 2 months, restriction and extra duty for 45 days, reduction to SR. No indication of appeal in the record.
860716:  Applicant completed Level II treatment (30May to 25Jun86).

 860721:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and drug abuse
860721:          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.
860723:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and drug abuse.

860808:  CNMPC 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 860820 under other than honorable conditions for misconduct due to commission of a serious offense (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 proper and equitable (C and D).

Applicant’s issue 1: When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The applicant’s service was marred by the award of nonjudicial punishment (NJP) on four occasions for violations of the Uniform Code of Military Justice (UCMJ). The applicant’s misconduct included unauthorized absence- 3 Specs including a period of 21 days, Article 91, Disrespectful language to a superior petty officer, Article 112A Wrongful use of marijuana, Article 128 Assault, and Article 134 -2 Specs -drunk and disorderly and wrongful communication of a threat. The applicant’s conduct and proficiency markings, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an honorable characterization of service. An upgrade to general under honorable conditions would be inappropriate. Relief is therefore denied.

Applicant’s issue 2: The Board is authorized to consider post-service factors in the recharacterization of a discharge (D). However, there is no law or regulation that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the Board. The board considered applicant’s two letters of reference as well as the business license. Relief denied.

Applicants issue 3: The term “serious offense” should not be confused with what is considered serious in the civilian world. The Uniform Code of Military Justice (UCMJ) categorizes a wide range of offenses: disrespectful language, failure to obey a lawful order or written regulation, such as not maintaining hair within standards, drunken driving, forgery, missing ship’s movement, unauthorized absence for 30 days or more, making false official statement, and so forth, right up to the most “serious” crimes of spying, aiding the enemy in time of war, mutiny, rape and murder. Although all of these offenses come under the broad UCMJ category of “serious offenses,” some are clearly more heinous than others. A person in the military must abide by the standards as set forth in the UCMJ, regardless of what guide lines his civilian counterparts might utilize. While the Board regrets that the applicant must live with the stigma associated with the term “serious offense,” it cannot justify changing the reason for the discharge unless it is inappropriate in describing the circumstances surrounding the applicant’s discharge. Relief denied.
Applicants issue 4: The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his immaturity was a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Applicants issue 5: The Board found nothing in the records nor did the applicant submit any supporting documentation that showed that his personal problems were of sufficient magnitude that they could not be resolved through standard military channels or by the applicant’s chain of command. Relief denied.

Applicants issue 6: The Board found nothing in the records nor did the applicant submit any supporting documentation that showed that his financial problems were of sufficient magnitude that they could not be resolved through standard military channels or by the applicant’s chain of command. Relief denied.

Applicants issue 7: The applicant stated he tried to serve to the best of his ability, but was unable to do so. The NDRB recognizes that serving in the Navy and Marine Corps is very challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most Sailors and Marines serve honorably and well and therefore earn honorable discharges. In fairness to those Sailors and Marines, commanders and separation authorities are tasked to ensure that undeserving Sailors and Marines receive no higher characterization than is due. While the NDRB respects the fact that the applicant tried, his service is equitably characterized as being performed under other than honorable conditions. Relief denied.

Applicants issue 8: The Board found nothing in the records to substantiate an application for nor reasons surrounding a “compassionate reassignment” request. Based on the lack of documentation, relief denied.

Applicants issue 9: The applicant’s service record indicates he enlisted under assignment of the Seaman Apprenticeship program and does not find any promises for rating assignment in an “electronics related field” as implied by the applicant. Relief denied.
Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560, Change 10/85, effective
16 Dec 85 until 05 Oct 86), Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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 Street SE Rm 309
                  Washington, D.C. 20374-5023     

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