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NAVY | DRB | 1999_Navy | ND99-00392
Original file (ND99-00392.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
ex-IC3(SW), USN
Docket No. ND99-00392

Applicant’s Request
The application for discharge review, received 990125, 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 991206. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an inequity but no impropriety in the characterization of the applicant’s service. The Board’s vote was 3 to 2 that the character of the discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT- Commission of a Serious Offense, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. My undesirable discharge was inequitable because it was based on one isolated incident in over 56 months of continued faithful and outstanding service with no other adverse action.

2. Original contract/guarantee breached at time of initial enlistment into active duty.

3. As a result of my undesirable discharge, I was forced to endure many hard ships which I am just recently recovering from.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
1. Personal letter of supporting evidence (explanation of documents related to issue 1, and personal views)
2. Letter of commendation (Rear Admiral, Commander, George Washington BG)
3. Letter of commendation (Commanding officer, Uss San Jacinto)
4. Letter of commendation (Commanding officer, Uss San Jacinto)
5. Certificate of Meritorious Advancement, CAP (Commanding officer, Uss San Jacinto)
6. Ceritficate for qualification of Enlisted Surface Warfare Specialist, ESWS (Commanding officer, Uss San Jacinto)
7. Certificate of Good Conduct for issuance of four year Good Conduct Medal (Commanding officer, Uss San Jacinto)
8. Certificate of Outstanding Physical Readiness (Training Center San Diego, Ca)
9. Ceritficate of Appreciation for community service (Principal of Elementary school)
10. Driving record (Taxation and Revenue Dept. of New Mexico)
11. (2) Pages of personal Resume (listing of working background, experience, education, and longevity)
12. List of week by week achievements, four pages, during initial start of career (A-school)
13. List of personal and professional references (personnel who may have considerable knowledge of my character, personnel who I have been in contact with during my career who have a favorable opinion of me, and / or personnel whom I have consulted as a means of confidential counceling)
14. Certificate of completion for stress management.
15. Doctors release form Active Duty (this document states mental and physical problems at time of discharge).
16. Doctors and Emergency Room documents (these documents relate to the accident on November 28th, 1998)
17. Personal Letter of supporting evidence (explanation of documents related to issue # 2, and personal views)
18. Navy recruiters handout pertaining to individual job requirements and guarantees (details the IC rating as a normal enlistment, 4 year contract required).
19. Navy recruiters handout pertaining to individual job requirements and guarantees (details the IC rating as an advanced technical field guarantee and enlistment, 6 year contract required).
20. Same as above document # 3 (darker copy, possibly more legible).
21 . Navy recruiters handout pertaining to Delayed Enlistment Program (document explaining the DEP program as it relates to active duty requirements).
22. Agreement to extend, Bupers 1070 / 621 (Document stating enlisted service members agreement to extend, w/o additional paragraph)
23. Agreement to extend, according to ATF qualifications and guarantees (Document stating members agreement to extend , with additional paragraphs and references)
24 .Reservation agreement for Great Lakes enlisted quarters (document stating members agreement upon arrival at NTC Great Lakes, IL).
25 . Photo copy of Great Lakes NTC ID card (Photo copy, front and back).
26. Certificate of appointment (document stating the advancement to P03).
27. Photo copy of the "A" school graduating class 93440 class picture (circled in RED are personnel who is explained in detail in Item # 12)
28. List of personal and professional references (whom I have served with or have had contact with concerning issue # 2).
29. Personal letter of supporting evidence (explanation of documents related to issue 3, and personal views)
30. Copy of the original separation orders (document stating home of residence and travel)
31. Copy of document needed by housing in order to have my wife's belongings shipped (document which I have not received a signed copy for and relates to yet another problem I have had due to my undesirable discharge)
32. Notice of determination of benefits (document denying benefits for unemployment due to separation reason, OTH)
33 . Phone service document for determination of benefits (document for the CSL line NM dept. of labor)
34. Copy of Agents cards who have tried to help me in my search for employment while in NM.
35. Copy of article stating Senator P_ D_'s concern for morale in the gulf, where I have been several times before.
36. Copy of letter sent to P_ D_ in response to the article (listed in item 7)
37. Copy of Memo received along with a phone call from the Senator in August of 1998 (He explained to me a more proper procedure which I am following up with now).

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     920605 - 930511  COG

 Period of Service Under Review :
Date of Enlistment: 930512               Date of Discharge: 980126

 Length of Service (years, months, days):

         Active: 04 08 15
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 80

 Highest Rate: IC2(SW)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (3)    Behavior: 3.93 (3)                OTA: 3.80        (4.0 evals)
 Performance: 3.50 (4)    Behavior: 2.75 (4)                OTA: 3.00       (5.0 evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR w/1 Bronze Star, SASM, NER (3), AFEM, AFSM, GCM, ESWSBI

 Days of Unauthorized Absence: 6

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

930607   Applicant extended enlistment for 24 months.

 980109:  NJP for violation of UCMJ, Article 86: Unauthorized absence 0700, 1Jan98 to 0605, 8Jan98, violation of UCMJ Article 87: Missing ship's movement on 6Jan98 (6 days/surrendered).
         Award: Forfeiture of $690 per month for 1 month, reduction to IC3. No indication of appeal in the record.
980109:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
980109:          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.
980109:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

980115:  Commander, Carrier Group SIX 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 980126 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 but inequitable (D and E).

In the applicant’s issue 1, although the applicant did commit a very serious offense of missing ship’s movement, for which he could have been court martialed, the Board found that the applicant was deserving of an upgrade to general (under honorable conditions) taking into account the applicant’s entire service record. The Board did not grant full relief to HONORABLE due to the imposition of NJP for a serious offense.

The applicant’s issues 2 and 3 are not issues for which the Board can make a decision.

The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge. The Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided ample documentation of good character and conduct. Therefore full relief will be not be granted. The applicant is encouraged to continue with his pursuits

Pertinent Regulation/Law (at time of discharge)
 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until Present, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE .

B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article [e.g., 87, missing ship’s movement] 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     


RECORD OF VOTE

 BOARD MEMBER                       CHARACTER                 BASIS/REASON






D. STOVER-KENDRICK, Col, USMC    Relief warranted         Relief not warranted
Presiding Officer






W. WRIGHT, CAPT, USN              Relief warranted                  Relief not warranted
Member






W.B. BURKE, CDR, USN              Relief not warranted              Relief not warranted
Member






 L.J. NEVEL, LT, USN               Relief not warranted              Relief not warranted
 Member






 P.A. CRONIN, LT, USN              Relief warranted                  Relief not warranted
 Recorder


 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until Present, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE, states:
 _________________________________________________________

Responsible BUPERS (Pers-83) Phone: DSN 224-8245
Office COM (703)614-8245
FAX 224-8194
_________________________________________________________

Reference Manual of Courts-Martial (MCM)
__________________________________________________________

Policy Members may be separated based on commission of a serious military
         Or civilian offense, when:
        
•         the specific circumstances of the offense warrant separation;
•         the offense would warrant a punitive discharge per MCM, Appendix 12 for the same or closely related offense.

The commission of a serious offense does not require adjudication by non-judicial or judicial proceedings. However, the offense must be substantiated by a preponderance of evidence (e.g., copy of police record, NCIS investigation, etc.).
         ____________________________________________________________

Mandatory        Processing is mandatory for:
Processing
•         violent misconduct which resulted in, or had the potential to result in, death or serious bodily injury, (e.g., homicide, arson, armed robbery, assault with a deadly weapon, etc.)

•         deviant sexual behavior (lewd and lascivious acts; sodomy - forcible heterosexual or child molestation; indecent assault, acts, and/or exposure; or incestuous relationships).

•         If incest, notify Pers-661D and Pers-8 immediately. Pers-8 will direct processing for separation if the case is substantiated for child sexual abuse.
•         If the member is ultimately retained, Pers-8 will forward the case to pers-661D, who will review he case for referral to the Family Advocacy Program (FAP). Whether the member is accepted or not, Pers-8 may direct separation of the member at his/her EAOS, with an RE-4 reenlistment code.
•         If the member is accepted, but later evaluated as a rehabilitation failure, reprocess per MILPERSMAN 1910-162.

•         sexual harassment under the following circumstances:

•         threats or attempts to influence another's career or job in exchange for sexual favors;
•         rewards (including bribes to influence favorably another's career) in exchange for sexual favors; or
•         unwanted physical contact of a sexual nature which, if charged as a violation of the UCMJ, could result in a punitive discharge.
____________________________________________________________

Procedures        Use this table to determine processing procedures.

        
WHEN the... THEN use the .. EXCEPT when... THEN use the ...
offense requires mandatory processing or the commanding officers believes the circumstances surrounding the offense warrants an OTH per MILPERSMAN 1910-300 Administrative Board Procedure (MILPERSMAN 1910-404) the offense occurred preservice or in a prior enlistment and was unknown to the navy at time of enlistment or reenlistment and processing for fraudulent enlistment is not appropriate Notification Procedure (MILPERSMAN 1910-402)
commanding officer believes the circumstances do not warrant an OTH per MILPERSMAN 1910-300 Notification Procedure (MILPERSMAN 1910-402)
         ______________________________________________________

Characterization Further guidance on characterization of service is provided in
of Separation    MILPERSMAN 1910-300. This table provides general information based on type of procedures used.

IF... THEN the least favorable characterization...
the Notification Procedure is used is GEN per MILPERSMAN 1910-308
the Administrative Board Procedure is used is OTH per MILPERSMAN 1910-300

         If the member has less than 180 days of service an Entry Level Separation may be appropriate. See MILPERSMAN 1910-308 for further guidance.
         _______________________________________________________

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