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NAVY | DRB | 1999_Navy | ND99-00811
Original file (ND99-00811.rtf) Auto-classification: Denied


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

ex-ETSN, USN
Docket No. ND99-00811

Applicant’s Request
The application for discharge review, received 990525, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Secretarial Authority. The applicant requested a documentary record discharge review. The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000222. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned inequity in the characterization of the applicant’s service. The Board’s vote was 4 to 1 that the character of the discharge shall change. The discharge shall change: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues
1.       The Board’s attention is invited to DD-293 wherein the applicant is requesting multiple changes in addition to his character of service. While our review failed to produce impropriety in the basis assigned, we ask that the Board consider a reason change, with applicable SPD, to SA, vice COG because there is no such current designation. Regarding his request for a reenlistment code change, please refer to BCNR.
Essentially, as noted in the letter submitted with DD-293, the applicant is requesting that his discharge be upgraded because he would not have received an UOTHC under current standards, because his command abused its authority in issuing him an UOTHC and because he has been a good citizen since discharge. He has submitted 13 pages of additional evidence in support of his contentions.

Based on our review, we opine that this applicant has amply stated his issues and accordingly, rest further comment on the evidence of record.
2.       Under current standards, I would not receive the type of discharge I did.
3.       My command abused its authority when it decided to discharge me and decided to give me a bad discharge.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214.    
Letter from Applicant
USS Cimarron Policy on Fraternization
Letter from USS Cimarron to BUPERS dated 950103
Statement of Awareness and Request for, or waiver of, Privileges dated 30 Dec 94
Applicant Enlisted evaluation dated 94 Dec 29
Letter of Recommendation from Applicant’s pastor dated 25 Nov 1998
Letter of Recommendation from Applicant’s college advisor dated 20 Nov 1998
Letter of Recommendation from Applicant’s employer
Letter of Recommendation from B___ M____

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     920723 - 920817  COG

 Period of Service Under Review :
Date of Enlistment: 920818                        Date of Discharge: 950303

 Length of Service (years, months, days):

         Active: 02 04 16
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 87

 Highest Rate: ET3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.0 (1)     Behavior: 1.0 (1)                 OTA: 1.0 (4.0 scale)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 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 3630600.

 Chronological Listing of Significant Service Events :

941230:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order (fraternization), snm[applicant] initiated an unduly familiar relationship with another crew member, after being specifically warned to maintain a professional relationship.
         Award: Forfeiture of $531 per month for 2 months, restriction and extra duty for 60 days, reduction to E-3. No indication of appeal in the record.
941231:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

941231   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.
950103:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding officer’s comments: “ETSN M-----violated and refuses to comply with the Navy’s policy on fraternization. He was warned at Captain’s Call on numerous occasions that the Navy’s fraternization policy would be enforced and furthered counseled by his divisional chain of command not to cross the bounds of professional relationships with other crew members. He blatantly violated both warnings and falsified the command’s overnight liberty log to conceal his intent to cohabitate with said E-3 female crew member. His conduct has been prejudicial to good order and discipline and has undermined a healthy command climate in Cimarron. He stated at Captains Mast that he had sexual relations with said E-3 and that he did not believe that he could be assigned to a mixed gender ship and comply with the OPNAV policy on fraternization. ETSN M----- has been onboard only 5 months but has demonstrated technical skills of a more seasoned petty officer. His overall performance, however, would place him as a 3.2 sailor with grades scattered between 3.0 and 3.6. Recommend snm be separated with characteristic of service as other than honorable”.

950112:  BUPERS 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 950303 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 but not equitable (C and D).

The Board found that the applicant had committed a serious offense and was properly discharged. However, the Board discerned that the nature of the offense was not so severe as to characterize the applicant’s discharge as Other Than Honorable. A number of issues played a part in the Board’s decision. First, the Board felt the Cimarron’s commanding officer was trying to send a stern message that fraternization would not be tolerated. The message was transmitted by characterizing the applicant’s service as Other Than Honorable. The Board feels that this characterization has served its purpose and that relief is now warranted. However, the Board did feel that an Honorable discharge was not deserving. The applicant disobeyed a direct order and must be held accountable for his misconduct. Second, the Board placed no merit in the applicant’s last evaluation when the overall average was 1.0 . Based on the CO’s comments, it appears the applicant was an average to above average sailor who had tried to conduct himself in an honorable manner. Third, the Board was impressed with the applicant’s post-service conduct and considered this conduct in the Board’s deliberations. These three issues were the primary reason the Board decided relief should be granted.

 The NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted. The applicant disobeyed a direct order. The applicant's blatant violation of the UCMJ constituted a serious offense. The applicant's DD Form 214, Block 26, Separation Code, indicates he was separated for misconduct based on the commission of a serious offense. No other Separation Code, or Narrative Reason for Separation could more clearly describe why the applicant was discharged. To change the Separation Code, or the Narrative Reason Separation would be inappropriate. The applicant’s discharge will change to GENERAL (UNDERHONORABLE CONDITIONS)/MISCONDUCT per NAVMILPERSMAN, Article 3630600. 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 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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