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NAVY | DRB | 1999_Navy | ND99-00470
Original file (ND99-00470.rtf) Auto-classification: Denied


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

ex-BTFN, USN
Docket No. ND99-00470

Applicant’s Request
The application for discharge review, received 990217, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing discharge review closest to Chicago, IL. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000201. 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 3630600.








PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. MMC D_ claimed he based 50% of his opinion on my transfer evaluation which he refereed to as mediocre. MMC D_ was in a billet designed to help students He used his position instead to go out of his way to end my military career.

2. MMC D_ appeared as a witness at my administrative board hearing as a volunteer. I truly believe had I been assigned to a fair NCO I would have been able to find a better solution to my predicament.

3. The U.S.N. overacted when they discharged me. The vote was 2-1 the representative for the government looked at one incident and recommended I be punished with an Other Than Honorable Discharge for commission of a serious offense, after I was court martially.

4. I believe I coulee have provided the US with further useful service. My sister has deceased and I would like to honor her by upgrading my discharge. I never intended to turn my back on my country and would like a chance to serve again.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of Enlisted Performance Evaluation Reports for 87Aug17 to 88Mar18, 86Jul01 to 87Jun30, 87Jul01 to 87Aug16, 88Mar18 to 89Jan26
Copy of Enlisted Performance Record
Copy of statement on adverse performance evaluation dated 25 January 1989
Fifteen pages from applicant's service record
Copy of special request/authorization dated 13 May 1988
Copy of Certificate of Completion dated 9 January 1987
Copy of W-2 for 1/1/88 to 12/31/88
Copy of 1040EZ for 1988
Copy of IL-1040 for 1988
Two letters from Department of Veterans Affairs to the applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     850524 - 850528  COG

 Period of Service Under Review :
Date of Enlistment: 850529               Date of Discharge: 890126

 Length of Service (years, months, days):

         Active: 03 07 28
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

 Education Level: 12                        AFQT: 54

 Highest Rate: BT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.73 (3)    Behavior: 3.53 (3)                OTA: 3.73

Military Decorations: None

 Unit/Campaign/Service Awards: NER, SSDR, MUC, AFEM, NMCEM

 Days of Unauthorized Absence: 69

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 3630600.

 Chronological Listing of Significant Service Events :

850606:  Applicant notified of exceeding the Navy weight standards and have been classified as being obese or overweight. You have two months from this date to show substantial progress. Your recorded height and weight are 71 inches, 231 pounds.

860124:  Counseling: Advised of deficiency (overweight by current weight standards), notified of corrective actions and assistance available.

871126:  Civil Conviction: In San Diego for violation of driving under the influence on 26 November 1987.
 Sentence: Fined $820.00, custody for 48 hours, attend NADSAP, probation for 3 years.
880428:  FLETRACEN notified NMPC received applicant on 21Apr88 for TEMDUINS for advanced BT maint pipeline in an obese status....28% body fat. Placed on diet and enrolled in medically approved physical remedial fitness training program. Comments: Applicant not enrolled in training. Medical record reflects applicant unfit for physical fitness test. Transfer eval block 20 reflects passed however risk factor screening/PRT in service record dated Oct87 reflects unsat. Recommendation: Return applicant to USS CONSTELLATION and continue on remedial PT program.

880505:  Retention Warning: Advised of deficiency (Alcohol abuse), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 880606:  Civil Conviction: Chula Vista Municipal Court for violation of no headlight on bike on 1 May 1988.
         Sentence: No further action found in service record.

880612:  Applicant declared a deserter. Unauthorized absence since 1230, 13May88.

880721:  Applicant apprehended by civil authorities 0740, 21Jul88 and returned to military control 0825, 21Jul88.

880825:  Applicant released from pre-trial confinement and restored to full duty.

880825:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 1230, 13May88 to 0825, 21Jul88 (69 days/apprehended).
         Findings: to Charge I and specification 1 thereunder, guilty.
         Sentence: Fine of $25.00, confinement for 35 days, reduction to BTFN.
         CA 880929: Sentence approved and ordered executed.

880909:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
880909:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
880927:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

881027:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. [Extracted from chronology of events.]

881227:  Chief of Naval Personnel forward recommendation for discharge under other than honorable conditions by reason due to the commission of a serious offense to Assistant Secretary of the Navy.

881230:  Assistant Secretary of the Navy directed separation with an other than honorable conditions by reason of misconduct due to commission of a serious offense.

890111:  CNMPC 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 890126 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 first issue contends a witness appearing at the applicant’s administrative board “went out of his way to end my (the applicant’s) military career. The NDRB found this issue irrelevant. The applicant was properly discharged with an administrative board. Relief not warranted.

The applicant’s second issue implies an impropriety in the administrative board procedures stating a personal bias by his NCO testifying at the administrative board. The NDRB found no irregularity in the administrative board’s procedures or decision. Relief not warranted.
The applicant’s third issue that the Navy overreacted with the discharge is irrelevant. The applicant was convicted of commission of a serious offense by a Special Courts Martial. The NDRB found no irregularity or impropriety in the applicant’s discharge. Relief not warranted.

 The applicants fourth issue is non decisional. Relief not warranted.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until
10 Jan 89, Article 3630600, SEPARATION OF ENLISTED MEMBERS 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, D.C. 20374-5023     


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