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NAVY | DRB | 1999_Navy | ND99-00403
Original file (ND99-00403.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND99-00403

Applicant’s Request
The application for discharge review, received 990128, requested that the characterization of service on the discharge be changed to Honorable and the reason for the discharge be changed to RE-1 (other). 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 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: 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 discharge was based on many offenses in the conclusion of an offense that I did not commit. My command abused its authority when they decided to give me anything less than an honorable discharge. Clemency is warranted because, it is an injustice for me to continue to suffer the adverse consequences of an other than honorable discharge, along with the stated reason.
During my tour of duty I received a number of awards and decorations. I was so close to finishing my tour on active duty, that it was unfair to give me anything less than an honorable discharge.
My ability to serve on active duty was in a manner impaired by the deprived background of my past environments. Since my discharge of my military obligations, I have continued to maintain my status as a veteran and good citizen.
As a result of the investigation in which this undesirable discharge stemmed from key factors remained disclosed. I was not awarded a fair hearing at captains masts nor during the investigation throughout its entirety. (applicant)

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (Member 1 and 4)
Copy of applicant appeal of nonjudicial punishment dated March 6, 1998
Copy of report of investigation dated October 24, 1997
Copy of evaluation report and counseling record for 97Jul16 to 98Jan15 and 98Jan15 to 98Apr15
Copy of FITREP/Eval summary letter dated April 14, 1998

PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 940525               Date of Discharge: 980415

 Length of Service (years, months, days):

         Active: 03 10 21
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 47/55

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.30 (2)    Behavior: 3.20 (2)                OTA: 3.50        4.0 evals
 Performance: 4.00 (2)    Behavior: 3.00 (2)                OTA: 3.17        5.0 evals*

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MUC

 Days of Unauthorized Absence: None

*Marks provided by applicant. No other (5.0 eval) marks found in service record.

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT – Commission of a serious offense, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).




 Chronological Listing of Significant Service Events :

950406:  NJP for violation of UCMJ, Article 91:, violation of UCMJ Article 92, violation of UCMJ Article 134.
         Award: Forfeiture of $427 per month for 2 months. Forfeiture suspended. No indication of appeal in the record.
950803:  Vacated suspended forfeiture of $427 for 2 months due to continued misconduct.
950803:  NJP for violation of UCMJ, Article 92: Failure to obey lawful order, violation of UCMJ Article 86 (2 specs): Failure to go to appointed place of duty.
         Award: Restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

980302:  NJP for violation of UCMJ, Article 121: Larceny and wrongful appropriation on 97SEP25, to wit: four pair of coveralls, a value of $82.20.
         Award: Reduction to E-2. Appealed 980306. Appeal denied 980331.
980313:  Applicant notified of intended recommendation for discharge General (under Honorable conditions) by reason of Misconduct due to the Commission of a Serious Offense.
980313:          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.
980313:  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: Enclosures (1) through (5) are provided for further information. In the time that Seaman Apprentice (applicant) has been in the naval service her behavior has been inconsistent and on several occasions has been disruptive to good order and discipline. She has been to Captain's Mast three times in her enlistment as evidenced by enclosures (4) and (5). There is not evidence in her record to indicate counseling after her first or second nonjudicial punishments by her prior command, thus the basis for processing is commission of serious offenses and not a pattern of misconduct. SA (applicant's) most recent misconduct of larceny of government property reflects an absence of rehabilitative potential. She has no potential for future naval service and is therefore being separated as soon as possible with a General discharge.

980401:  Commander, Naval Base, Jacksonville, FL directed the applicant's discharge General (under 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 980415 general (under 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 claims her command abused its authority by giving her a less than honorable discharge. An NIS investigation was conducted to identify who stole the cash box and coveralls, prior to her NJP for larceny. She was found guilty of stealing government property at Captain’s mast and punished accordingly. The applicant suggests, because she was close to finishing her tour she should have received an Honorable discharge. Her conviction of larceny negates any claim of Honorable service to her country. The applicant claims her deprived background impaired her ability to serve on active duty. She was fully qualified to join the Navy and is responsible for her actions as an adult. The applicant did not provide any documentation to support her claim of being a good citizen. Her NJP and subsequent discharge was proper and equitable. Relief denied.

 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 121, larceny, 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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