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NAVY | DRB | 1999_Navy | ND99-00672
Original file (ND99-00672.rtf) Auto-classification: Denied


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

ex-AR, USNR
Docket No. ND99-00672

Applicant’s Request
The application for discharge review, received 990415, 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 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.


The NDRB did note an administrative error on the original DD Form 214. Block 25, Separation Authority should read: “3630600” vice “3620200”. The original DD Form 214 should be corrected or reissued as appropriate.





PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. Advised by counsel at the time of my hearing that a general under honorable conditions would still have me eligable for the Montgomery GI Bill so I can complete college.

2. Did not think my conduct was such, that I should have been retained as my evaluation of Dec 02 94 stated, certainly not to lose my benefits.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Second page of Enlisted Performance Evaluation Report dated 94Feb01 to 94Dec02
Letter to Senator from applicant dated 2 February 1998

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 920331               Date of Discharge: 941202

 Length of Service (years, months, days):

         Active: 02 01 25
         Inactive: 00 06 06

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 12                        AFQT: 32

 Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (1)    Behavior: 3.40 (1)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

921008:  Commenced active duty.

 931105:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Absent from unit 1700, 17Sep93 until 0630, 18Sep93, (2) Fail to go to appointed place of duty, to wit: 0500 muster at the AFT Galley.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 20 days. No indication of appeal in the record.
931115:  Retention Warning: Advised of deficiency (Misconduct evidenced by your Captain Mast on 5 November 1993, for violation of Article 86: (1) At or about 1700, 17 September 1993 absent yourself from unit until 0630, 18 September 1993 (2) Fail to go to your appointed place of duty on 0500, 21 September 1993.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
940105:  NJP for violation of UCMJ, Article 86: Go from appointed place of duty on 1835, 15Nov93, to wit: extra duty assignment.
         Award: Forfeiture 1/2 months pay for 1 month, restriction and extra duty for 20 days. Forfeiture suspended for 3 months. No indication of appeal in the record.
940216:  Vacate forfeiture suspended at CO's NJP of 5Jan90 due to continued misconduct.
940216:  NJP for violation of UCMJ, Article 91 (2 specs): (1) Willfully disobey a lawful order on 20Jan90, (2) Disrespectful toward a SUP E-5 on 20Jan90, to wit: by saying "Hell no, I ain't going to do it, in an argumentative manner.
         Award: Forfeiture of $416 per month for 2 months, restriction and extra duty for 20 days, reduction to AR. Appealed 940217. Appeal denied 940311.
940524:  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 pattern of misconduct.
940603:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
940623:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had not committed a serious offense, that the applicant had committed a pattern of misconduct, that the misconduct warranted separation, and recommended discharge general under honorable conditions.

940726:  Commanding officer recommended an other than honorable discharge by reason of misconduct due to the commission of a serious offense and pattern of misconduct. Commanding officer's comments (verbatim): I disagree with the Board's finding that the Respondent has not committed misconduct due to commission of serious offenses. Those offenses were thoroughly investigated at Captain's Mast. Additionally, this sailor submitted an appeal and the offenses were further investigated with the finding that he had indeed committed the alleged misconduct. His appeal was denied. Moreover, I believe he should be separated under Other Than Honorable conditions. Otherwise, I concur with the boards findings and recommendation.

940829:  BUPERS message: Informing USS JOHN F KENNEDY applicant's case must be referred to a new administrative board consisting of all new members because administrative board of 23Jun94 was not properly convened.

940901:  Applicant informed of right to have another administrative board due to the fact that a reservist was not placed on his first board.

940927:  BUPERS message: Applicant waives right to another administrative board and concurs with the findings of his board of 23Jun94.

941021:  BUPERS directed the applicant's discharge general (under 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 941202 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 signed a statement on September 1, 1994 stating that the applicant was “satisfied with LT F____’s representation of me as well as her advice to me”.
Without any other evidence, the Board found the applicant’s issue without merit. Relief denied.

Regarding the applicant’s second issue, the NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the characterization of a discharge if such a change is warranted. The summary of service clearly documents the pattern of misconduct and the commission of a serious offense for which the applicant was discharged. No other characterization could more clearly describe why the applicant was discharged. Relief denied.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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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