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NAVY | DRB | 1999_Navy | ND99-00421
Original file (ND99-00421.rtf) Auto-classification: Denied


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

ex-MSSN, USN
Docket No. ND99-00421

Applicant’s Request
The application for discharge review, received 990202, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed AMERICAN LEGION as his 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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.       (EQUITTY ISSUE) This former member opines that his UOTHC discharge is to harsh based on his overall enlisted performance record and his CO's recommendation for a GD.
2.       (EQUITTY ISSUE) This former member further requests that the Board include provision of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies of DD Form 214 (2).

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        850827 - 900822  HON
         Inactive: USNR (DEP)     None

 Period of Service Under Review :
Date of Enlistment: 900823               Date of Discharge: 940223

 Length of Service (years, months, days):

         Active: 03 06 00
         Inactive: None

 Age at Entry: 21                          Years Contracted: 5

Education Level: 12                        AFQT: 31

 Highest Rate: MS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.52 (5)    Behavior: 3.64 (5)                OTA: 3.48

 Military Decorations: None

 Unit/Campaign/Service Awards: NAVY"E"AWARD, SSDR(3), NDSM, GCM

Days of Unauthorized Absence: None

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 :

900823:  Reenlisted onboard USS AUSTIN (LPD-4) for 5 years.

xxxxxx:  Counseled for General DC Qualification Delinquent (Not Dated).

 xxxxxx:  Counseled for failure to do mandatory remedial PRT on designated dates (Not Dated).

xxxxxx:  Counseled for not preparing enough of the main course and having to be constantly supervised (Not Dated).

xxxxxx:  Counseled for not preparing sandwiches on the line which was the main course for lunch (Not Dated).

 930423:  Counseled for being late for low visibility watch training.

 931101:  NJP for violation of UCMJ, Article 92: (2 Specifications), (Spec 1) Violate a lawful order from a Superior Chief Petty Officer between 930923 and 930928, Spec 2: Violate a lawful instruction, violation of UCMJ Article 123: (3 Specifications), Intent to defraud and for the procurement of lawful currency, wrongfully and unlawfully made checks #152 on (930921), #153 on (930921) and #157 on (930926) then knowingly that he did not or would not have sufficient funds in or credit with such bank for payment.
         Award: Forfeiture of $100.00 per month for 1 month, restriction and extra duty for 10 days. No indication of appeal in the record.

931109:  Retention Warning: Advised of deficiency (You failed to follow orders issued by your LCPO and wrote bank checks without any funds in your checking account, which actions resulted in Captain's Mast on November 1, 1993.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

931113:  Counseled for leaving the galley with Deep Fat Fryer on and set at 350 degrees and coming to work in a dirty uniform.
                  
931213:  NJP for violation of UCMJ, Article 121: Wrongfully appropriate a pair of Service White trouser, of a value of $30.00.
         Award: Forfeiture of $541.00 per month for 1 month, restriction and extra duty for 45 days, reduction to MSSN. No indication of appeal in the record.
         
931219:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by NJP for which a punitive discharge is authorized punishment and by reason of misconduct due to a pattern of misconduct as evidenced by three or more punishments under the UCMJ.
940111:          Applicant advised of his rights and having elected 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.
940119:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct

940216:  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 940224 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).

 The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.

The applicant’s representative submitted the following as issue 2: (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). However, there is no law or regulation which 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, is considered. The applicant provided no documentation of his post-service conduct. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the 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 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. 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, DC 20374-5023       


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