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NAVY | DRB | 1999_Navy | ND99-00460
Original file (ND99-00460.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND99-00460

Applicant’s Request
The application for discharge review, received 990216, 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 991213. 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 3630605.

The NDRB did note an administrative error on the original DD Form 214. Block 25, Separation Authority should read: “36300605” vice “3630600”. The original DD Form 214 should be corrected or reissued as appropriate.






PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. I believe my problems were due to a personality conflict with Chief Lee. He was on me constantly! My 2 nd Class BM2 E_) saw this and said he couldn't do anything about it. I was demoralized and felt mistreated, therefore went on unauthorized absence from my duty station several times. When I did this, left while angry and after a cooling off period I was afraid to return.

After receiving disciplinary action, I had the option from Capt. D_ to stay in the Navy, but I asked for discharge. I was young and confused. I did not know the seriousness of my decision. If I had asked to stay in the Navy, I could have stayed in. Now, I want to change that decision and re-enlist in the Navy.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Character reference from Pastor dated November 6, 1998
Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     960614 - 960924  COG

 Period of Service Under Review :
Date of Enlistment: 960925               Date of Discharge: 971230

 Length of Service (years, months, days):

         Active: 01 03 06
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 35

 Highest Rate: PO3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 1.00 (2)                OTA: 2.50

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 52

 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 3630605.

 Chronological Listing of Significant Service Events :

970724:  NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence 0630, 16Jun97 to 2300, 14Jul97 (29 days/surrendered), and 15Jul97 to 24Jul97 (8 days), violation of UCMJ Article 87 (3 specs): Missing ship's movement on 17Jun97, 24Jun97 and 15Jul97, violation of UCMJ Article 134: Breaking restriction.
         Award: Forfeiture of $450.45 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
970724:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 86 - Absence without leave (2 specifications), Article 87 - Missing ships movement (3 specifications), and Article 134 - Break restriction.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
971120:  NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence 0430-1530, 4Nov97 and 0700, 17Nov97 to 2200, 19Nov97 (2 days/surrendered); violation of UCMJ Article 87: Missing ship's movement on 4Nov97.
         Award: Forfeiture of $450.45 per month for 2 months, bread and water for 3 days, reduction to E-1. No indication of appeal in the record.
971206:  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 a pattern of misconduct.
971206:  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.
971206:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and pattern of misconduct.

971223:  COMPHIBGRU THREE 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 971230 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 response to applicant’s issue 1, the Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby. Also, 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 not granted.
The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E). The applicant must be aware that 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, may be considered by the NDRB. 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. Representation at personal appearance hearing is highly recommended.

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 86, for unauthorized absence for a period in excess of 30 days and 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                Relief not warranted              Relief not warranted
COL, USMC, Presiding Officer






C. BUCHHEISTER, LCDR, USN Relief not warranted   Relief not warranted
Member






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






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






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


 A. The Naval Military Personnel Manual, (NAVPERS 15560C, Change 14, effective 03 Oct 96 until 11 Dec 97, Article 3630605, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT COMMISSION OF A SERIOUS OFFENSE , states:

1. Basis. A member may be separated based on commission of a serious military or civilian offense, when:

a. the specific circumstances of the offense warrant separation; and

b. the member has committed an offense for which a punitive discharge would be authorized by the Manual for CourtsMartial, Appendix 12, for the same or a closely related offense.

2. Procedures

a. The Administrative Board procedure (MILPERSMAN 3640200.7 and 8) shall be used except when the commanding officer believes that the offense committed does not warrant an Other Than Honorable characterization of service under MILPERSMAN 3610250.2b(3). In such cases, the Notification Procedure (3640200.5 and 6) shall be used.

b. The Administrative Board procedure (MILPERSMAN 3640200.7 and 8) must be used when processing misconduct:

(1) which resulted in, or had the potential to result in death, or serious bodily injury (this can include spouse and child abuse incidents), such as but not limited to: homicide, arson, armed robbery, etc.

(2) involving sexual behavior that deviates from socially acceptable standards of morality and decency, including, but not limited to:

(a) lewd and lascivious acts;

(b) sodomy (forcible heterosexual or child molestation);

(c) indecent assault;

(d) indecent acts; and

(e) indecent exposure.

Note that if circumstances involve an incestuous relationship, commanding officers shall notify Chief of Naval Personnel (CHNAVPERS) (Pers661) immediately upon discovery. Per OPNAVINST 1752.2A, Pers661 will review the case for referral to the Family Advocacy Program; if member is not accepted, commanding officers will be directed to process the member for separation. Note that acceptance into Family Advocacy Programs run by Family Service Centers at local commands does not constitute formal acceptance into the Navy's Family Advocacy Program.

(3) misconduct involving sexual harassment. Following disciplinary action, if appropriate, a member must be processed for separation on the first substantiated incident of sexual harassment involving any of the following circumstances:

(a) threats or attempts to influence another's career or job for sexual favors;

(b) rewards in exchange for sexual favors; or

(c) physical contact of a sexual nature which, if charged as a violation of the Uniform Code of Military Justice (UCMJ), could result in a punitive discharge.

Note that an incident is substantiated if there has been a nonjudicial punishment or courtmartial conviction, or the commanding officer is convinced, based on the preponderance of the evidence that sexual harassment has occurred. All forms of sexual harassment not mentioned above must still be handled administratively (i.e.; NAVPERS 1070/613, Administrative Remarks (Page 13) counseling, letters of instruction, nonpunitive letters, remarks in evaluations, etc.).

c. Administrative separation processing is mandatory for reasons listed in paragraph 2b above.

d. Members must be dual or multiple processed where appropriate, for all reasons [for] which minimum [sic (minima)] criteria is [sic (are)] met.

3. Characterization or Description

a. Normally will be under Other Than Honorable conditions if the Administrative Board procedures were used; however

b. Characterization of service as General may be assigned when warranted under paragraph 2b of MILPERSMAN 3610250.

c. For respondents who have completed entry level status, characterization of service as Honorable is not authorized unless the respondent's record is otherwise so meritorious that any other characterization would be clearly inappropriate.

 d. When characterization of service under Other Than Honorable is not warranted for a member in entry level status, the separation shall be described as Entry Level Separation per paragraph 3a of MILPERSMAN 3610250.

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