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NAVY | DRB | 1999_Navy | ND99-00814
Original file (ND99-00814.rtf) Auto-classification: Denied


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

ex-YNSN, USN
Docket No. ND99-00814

Applicant’s Request
The application for discharge review, received 990528, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions and the reason for the discharge be changed to RE-1. 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 000214. 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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT – Commission of a Serious Offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. Indebtness: I gave the military 4 1/2 years of my life to protect my country. I would do it again if called upon. My discharge is unjust and unfair.

2. Victim of crime: My checks were stolen and I payed my bills by check. Service members should be supported by the command they are serving, and the Navy. Good people are being discharged for something that can be prevented.

3. Honorable Discharge: While serving aboard the USS WASP LHD-1, I proved to that command I could serve my country honorably. I am also being victimized because my first tour of duty is being disgarded. Please, review my military records and do the right thing. Do not scorne a service member for life; over something that could have been prevented if was given the opportunity.

Renumbered issues:

4. Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.

5. My average conduct and efficiency ratings/behavior and proficiency marks were good.

6. I received letters of recommendation.

7. My record of promotions showed I was generally a good service member.

8. I had a prior Honorable Discharge.

9. Financial problems did not impair my ability to serve.

10. I tried to serve and wanted to but wasn't able to.

11. My command abused its authority when it decided to discharge me and decided to give me a bad discharge.

12. The punishment I got was too harsh.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214.
Letter from Defense Finance and Accounting Service dated February 20, 1999
Letter from Department of Veterans Affairs dated November 1997
Five pages from applicant's service record
DD Form 149

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USNR              890802 - 921108  HON
         Inactive: USNR (DEP)     890427 - 890801  COG

 Period of Service Under Review :
Date of Enlistment: 921109               Date of Discharge: 931028

 Length of Service (years, months, days):

         Active: 00 11 20
         Inactive: None

 Age at Entry: 22                          Years Contracted: 2

 Education Level: 12                        AFQT: 20

 Highest Rate: YN3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.87 (3)    Behavior: 3.00 (3)                OTA: 2.93

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, SASM w/Bronze Star

 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 :

931013:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ Article 92: Failure to obey a lawful order, violation of UCMJ Article 123A (14 specifications): Making a check without sufficient funds ($4,000.00 to Naval Air Federal Credit Union (13 specs) and $32.93 to Navy Exchange (1 spec).
         Award: Forfeiture of $541.05 per month for 2 months, restriction and extra duty for 45 days, reduction to YNSN. No indication of appeal in the record.
931014:  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 misconduct due to a pattern of misconduct.
931014:          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.
931014:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct. Commanding officer’s comments (verbatim): YNSN____(applicant) fails to meet requisite standards of performance, discipline and character that an enlistment in the United States Navy requires. YNSN___(applicant) has shown a disregard for standards of military conduct and discipline over the past nine months and has been a constant disciplinary problem. His repeated infractions of the UCMJ have proven to be an unacceptable administrative burden to this command and a drain on valuable resources. Numerous formal and informal counseling sessions by supervisors, department heads and the executive officer have been unsuccessful in bringing YNSN___(applicant’s) performance and conduct to a satisfactory level. He has failed to show any improvement in military standards of conduct, displays no desire to attempt improvement, and refuses to accept responsibility for his actions. YNSN___(applicant’s) commission of serious offenses, pattern of misconduct, and inability to conform to naval standards of conduct, discipline, and performance provide the basis for my decision to separate YNSN____(applicant) from the naval service, with the added recommendation for an Other Than Honorable discharge.

931027:  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 931028 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 equitable (D and E).
In response to applicant’s issues 1, 2, 4, 5, 6, 7, 11, and 12, 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. Relief will not be granted on the basis of these issues.

In response to applicant’s issues 3 and 8, the Board only takes into consideration the applicant’s current period of service in reviewing a discharge. The Board found that the applicant was very fortunate indeed to have received an Honorable discharge on his first enlistment considering the applicant’s Special Court-Martial on 910130 for violation of UCMJ Article 86: 117 days unauthorized absence, for which the applicant was found guilty.

In response to applicant’s issues 9 and 10, the Board recognizes that serving in the Navy is very challenging to both the Sailor and his family members. Our country is fortunate to have men and women willing to endure the hardships and make the sacrifices required to serve their country. It must be noted that most Sailors serve honorably and well, and therefore, earn their honorable discharges. The applicant's service is accurately characterized as having been performed under other than honorable conditions. Relief is not warranted.

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. 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 5, effective
05 Mar 93 until 21 Jul 94, 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 92, for failure to obey a lawful order, 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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