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NAVY | DRB | 1999_Navy | ND99-00485
Original file (ND99-00485.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND99-00485

Applicant’s Request
The application for discharge review, received 990223, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance hearing discharge review. The applicant listed the American Legion as his representative on the DD Form 293.

 Decision

A personal appearance review was conducted in Washington, D.C. on 991018. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety but did discern inequity in the characterization of the applicant’s service. The Board’s vote was three to two that the character of the discharge shall change. The discharge shall change to: GENERAL(UNDER HONORABLE CONDITIONS)/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.






PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. (EQUITY ISSUE) As the documentary evidence of record supports, this former member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure(1), paragraph 9.3.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
University of Akron schedule 16 July 1999
Statements of account 16 July 1999 (2)
Character reference letters (5)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     880224 - 880920  COG

 Period of Service Under Review :
Date of Enlistment: 880921               Date of Discharge: 901002

 Length of Service (years, months, days):

         Active: 02 00 12
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 47

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (2)    Behavior: 3.20 (2)                OTA : 3.20

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM

Days of Unauthorized Absence: None

 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 :

890302:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order or regulation on 18Feb89, to wit: wrongfully wearing civilian attire while in a duty status.
         Award: Restriction and extra duty for 7 days. No indication of appeal in the record.
890302:  Retention Warning: Advised of deficiency (Failure to obey a lawful order or regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
891127:  Counseling: Advised of deficiency (performance and military behavior), notified of corrective actions and assistance available.

900118:  Counseling: Advised of deficiency (performance), notified of corrective actions and assistance available.

900201:  Counseling: Advised of deficiency (military behavior), notified of corrective actions and assistance available.

900308:  NJP for violation of UCMJ, Article 86 (2 specs):
         Specification 1: Fail to go at the time prescribed to his appointed place of duty on 23Feb90, to wit: Report to Medical compartment.
         Specification 2: Fail to go at the time prescribed to his appointed place of duty on 01Mar90, to wit: 0700 Duty Section Muster.
         Violation of UCMJ Article 91: Disobeying a lawful order from petty officer on 1Mar90, to wit: remain awake while on duty.
         Award: Forfeiture of $362 per month for 2 months, restriction and extra duty for 30 days, reduction to AR. Forfeiture for 1 month and reduction suspended for 6 months. No indication of appeal in the record.
900308:  Counseling: Advised of deficiency (performance and military behavior), notified of corrective actions and assistance available.
900310:  Retention Warning: Advised of deficiency (Misconduct due to involvement of a discreditable nature with military authority.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
900328:  Counseling: Advised of deficiency (performance), notified of corrective actions and assistance available.

900507:  Counseling: Advised of deficiency (personal behavior and military behavior), notified of corrective actions and assistance available.

900508:  Counseling: Advised of deficiency (indebtedness), notified of corrective actions and assistance available.

900517:  Counseling: Advised of deficiency (lateness), notified of corrective actions and assistance available.

900724:  Vacate forfeiture and reduction awarded at CO's NJP dated 8Mar90 due to continued misconduct.

900725:  NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence.
         Award: Forfeiture of $362 per month for 2 months, restriction for 30 days. No indication of appeal in the record.
900814:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.
900814:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
900904:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a pattern of misconduct and commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.
900906:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.

900925:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

 930329:  NDRB documentary record review Docket Number ND92-00147 hconducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 901002 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 but inequitable (D and E).

In response to applicant’s issue 1, the Board after reviewing the applicant’s post-service conduct, grants clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective
21 Aug 89 until 14 Aug 91, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 91, willfully disobeying a lawful order from a petty officer, 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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