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NAVY | DRB | 1999_Navy | ND99-00665
Original file (ND99-00665.rtf) Auto-classification: Denied


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

ex-SHSN, USN
Docket No. ND99-00665

Applicant’s Request
The application for discharge review, received 990421, 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 000207. 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)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I feel that my discharge was unfair & to harsh. The reason is because I went to captain mast for disrespect to a senior petty officer and was awarded reduction in rate to E-4 to E-3, ten days (10) restriction and general discharge. At the time of mast I only had 30 days left in the Navy. The incident happened in April 98 I went to mast in May 98 my discharge date originally was 5 June 98. Instead he put me out with 22 days of enlistment and a short notice of discharge. I found out I was leaving the day after I got off restriction. I feel I still should have been entitled to a honorable discharge after already being punished for the offense. As well as my VA benefits such as my GI Bill and unemployment benefits I was not entitled for unemployment because I only had 3 yrs 11 months 8 days of service. Your help in this matter will be appreciated. I was aboard the USS EMORY S LAND AS-39 FPO AP 09545-2610 under the commanding officer of Capt T. A. D_____.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies of DD Form 214 (2)
Copy of NJP (2pgs)
Copy of Notification Procedure

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               None
         Inactive: USNR (DEP)     930430 - 940605  COG

 Period of Service Under Review :
Date of Enlistment: 940606               Date of Discharge: 980513

 Length of Service (years, months, days):

         Active: 03 11 08
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 35

 Highest Rate: SH3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 1.00 (2)                OTA: 2 .31

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM, BATTLE"E"RIBBON (2 ND )

 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 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

970114:  NJP for violation of UCMJ, Article 117: Provoking speeches or gestures; violation of UCMJ Article 134: Disorderly conduct.
         Award: Oral Reprimand and reduction in rate (suspended for 6 months). No indication of appeal in the record.
980501:  NJP for violation of UCMJ, Article 91: Disrespect to non-commissioned officer on 980402.
         Award: Restriction for 10 days, reduction to E-3. No indication of appeal in the record.
980506:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense [Extracted from case file].
980506:          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 [Extracted from case file].
980602:  Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. Commanding officer’s comments: Storekeeper Seaman G_____'s performance seriously declined during her time on board USS EMORY S. LAND (AS-39). In addition to being awarded Commanding Officer's Nonjudicial Punishment twice, she was continuously counseled regarding this lack of performance. Seaman G_____ failed to heed any counseling or take corrective measures. She ultimately became an administrative burden and was approaching her end of active obligated service. In view of the foregoing, she was separated from the naval service with a General (Under Honorable Conditions) discharge on 13 May 1998 [Extracted from case file].

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980513 general under 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 issue (equity) states that the discharge was “unfair and too harsh.” She states: “t he reason is because I went to captain mast for disrespect to a senior petty officer and was awarded reduction in rate to E-4 to E-3, ten days (10) restriction and general discharge. At the time of mast I only had 30 days left in the Navy. The incident happened in April 98 I went to mast in May 98 my discharge date originally was 5 June 98. Instead he put me out with 22 days of enlistment and a short notice of discharge. I found out I was leaving the day after I got off restriction. I feel I still should have been entitled to a honorable discharge after already being punished for the offense. As well as my VA benefits such as my GI Bill and unemployment benefits I was not entitled for unemployment because I only had 3 yrs 11 months 8 days of service. Your help in this matter will be appreciated. I was aboard the USS EMORY S LAND AS-39 FPO AP 09545-2610 under the commanding officer of Capt T. A. D_____.”
The NDRB found that although the applicant was close to her EAOS she had committed misconduct that could have resulted in her discharge Under Other Than Honorable Conditions due to the commission of a serious offense. The applicant’s equity issue is without merit. Relief not warranted.

Additionally, the applicants issue to upgrade her discharge in order for her to become eligible for GI Bill benefits and unemployment are without merit. Relief not warranted.

The applicant offered no post service documentation for the Boards consideration. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 18, effective
12 Dec 97 until Present, Article 1910-142 [formerly 3630605]. SEPARATION 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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