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NAVY | DRB | 1999_Navy | ND99-00393
Original file (ND99-00393.rtf) Auto-classification: Denied


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

ex-PNSA, USNR
Docket No. ND99-00393

Applicant’s Request
The application for discharge review, received 990126, 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 any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991130. 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, authority: NAVMILPERSMAN, Article 3630605.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. My discharge is improper because it's based on the fact that I missed one day of work upon returning from pre-deployment leave.

Since my last meeting with the Captain I received a Navy Achievement Medal I striked for Personnelman "A" school, finished second highest in class. Extended my first 6 month deployment, and was working on getting my ESWS pin. Also completed PARS & QUALS up to PN2.


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

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     920623 - 930402  ELS
                  USNR (DEP)      930729 - 930801  COG

 Period of Service Under Review :
Date of Enlistment: 930802               Date of Discharge: 961227

 Length of Service (years, months, days):

         Active: 03 04 26
         Inactive: None

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 12                        AFQT: 54

 Highest Rate: PNSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (2)    Behavior: 3.60 (2)                OTA: 3.70

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NAM, NER (3), NDSM, MUC, AFSM

 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 3630605.

 Chronological Listing of Significant Service Events :

941025:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ Article 128: Assault consummated by a battery.
         Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 45 days, reduction to E-2. Reduction suspended for 5 months. No indication of appeal in the record.
960629:  NJP for violation of UCMJ, Article 92: Failure to obey an order or regulation (alcohol on Hill and alcohol in BEQ).
         Award: Correctional custody for 14 days. No indication of appeal in the record.
961121:  Applicant's statement: Mr. W_, I (applicant), SSN deleted, have a confession that I have been smoking marijuana and would like to take a urinalysis as soon as possible. (Signed by the applicant.)

961122:  NJP for violation of UCMJ, Article 86: Unauthorized absence 0700, 12Nov96 to 0700, 14Nov96.
         Award: Forfeiture of $490.35 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
961122:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of Misconduct due to Drug abuse, the Commission of a Serious Offense and a Pattern of Misconduct.
961122:          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.
961202:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of Misconduct due to Drug abuse, Commission of a Serious Offense and a Pattern of Misconduct.

961210:  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 961227 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 determined this issue is without merit. The applicant states her discharge was based on “missing one day of work upon returning from pre-deployment.” Documents clearly show the applicant’s command processed her for Drug abuse (the applicant drafted and signed a written statement), Commission of a Serious Offense (assault consummated by a battery, and failure to obey an order or regulation) and Pattern of Misconduct. BUPERS directed her discharged by reason of Commission of a Serious Offense. Her discharge was proper and equitable. Relief denied.

Although not raised as an issue, the following information is provided for the benefit of the applicant. There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life, subsequent to leaving military service. The NDRB reviews the propriety and equity of each applicant’s discharge to determine if an error has occurred during the discharge process. No such error occurred during the applicant’s discharge. Additionally, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge, with verifiable documentation. Just stating she accomplished any of the factors listed below is not sufficient evidence. Those factors include but are not limited to the following: Evidence of continuing education, a verifiable employment history, documentation of community service, certification of non-involvement with civil authorities and proof of not using drugs. Although relief has been denied, the applicant is encouraged to schedule a personal appearance hearing, after establishing a reputation that would warrant an upgrade to her discharge. Legal representation is strongly recommended. Again, document these achievements, in preparation for the personal appearance hearing.

The applicant 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 15560C), Change 14, effective
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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 92, failure to obey an order or regulation and Article 128, assault consummated by a battery, 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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