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NAVY | DRB | 1999_Navy | ND99-00575
Original file (ND99-00575.rtf) Auto-classification: Denied


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

ex-ENS, USNR
Docket No. ND99-00575

Applicant’s Request
The application for discharge review, received 990317, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000104. 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/IN LIEU OF TRIAL BY COURT MARTIAL, authority: SECNAVINST 1920.6A.

The NDRB did note an administrative error on the original DD Form 214. Block 25, Separation Authority, should read also include "SECNAVINST 1920.6A". The original DD Form 214 should be corrected or reissued as appropriate.







PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. My discharge was inequitable because it was based on one isolated incident in 120 months of service.

2. My discharge was inequitable because it was based on hearsay and not fact.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Fitness Report & Counseling Record for periods 98APR10 - 98APR30 (Not observed) and 96NOV04 - 97FEB23 (Continuity)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               940511-960614    To accept appointment
                                             920118 - 940510  COG
                                             871019 - 920117  COG
         Inactive: USNR (DEP)     870729 - 871018  COG

 Period of Service Under Review :
Date of Enlistment: 960615               Date of Discharge: 980430

 Length of Service (years, months, days):

         Active: 01 10 16
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 16                        AFQT: N/A

 Highest Rate: ENS

 Final Officer Performance Evaluation Averages : All officer performance reports were available to the Board for review.

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM(2), NUC, NER, NDSM, SWASM (w/Star), AFEM, SSDR

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/IN LIEU OF TRIAL BY COURT MARTIAL, authority: SECNAVINST 1920.6A & BUPERS ORDER 0908 OF 311021Z MAR 98.

 Chronological Listing of Significant Service Events :

971002:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 133: conduct unbecoming an officer.

971020:  Applicant was initially offered non-judicial punishment on 28 July 1997, which he accepted, but subsequently refused. Article 32 hearing held and the case was referred to trial by general court-martial on 4 Dec 97.
        
980109:  A pplicant submitted his resignation in lieu of a trial by general court-martial. He was fully advised of the implications of his request . The applicant understood that if discharged with a General (under honorable conditions), it shall entitle him to the major portion of veteran's rights and benefits presently authorized for former officers whose service has been similar to his own, should any present or future statute specifically require honorable discharge as a condition precedent to the granting of rights or benefits thereunder, my eligibility for such rights and benefits may at least be doubtful.
980127:  CNET recommended to CHNAVPERS and the SECNAV that applicant's resignation be approved and applicant be discharged with a general (under honorable conditions) in lieu of trial by General court-martial.

980312:  CHNAVPERS recommended to the Secretary of the Navy that applicant's resignation be approved and the request for separation in lieu of a trial by court-martial be directed with a General characterization.

980319:  Secretary of the Navy approved applicant's discharge with a General in lieu of trail by court-martial.

980331:  BUPERS issued separation orders (ORDER 0908 - 311021ZMAR98).

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 980430 with a General (under honorable conditions) in lieu of a trial by court-martial (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 applicant’s issue 1, the applicant implies that a permissive doctrine exists whereby one in the military is allowed a single misdeed. The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant is responsible for his actions and must accept the consequences of his misdeeds. The Board will not grant relief on the basis of this issue.
In response to applicant’s issue 2, 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. Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant.

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 The Secretary of the Navy Instruction 1920.6A of 21 November 1983 (Administrative separation of Officers), establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 15 October 1981.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article [e.g., 86, unauthorized absence for a period more than 30 days] upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-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 St SE Rm 309
                  Washington, D.C. 20374-5023     


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