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NAVY | DRB | 1999_Navy | ND99-00870
Original file (ND99-00870.rtf) Auto-classification: Denied


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

ex-MMFR, USN
Docket No. ND99-00870

Applicant’s Request
The application for discharge review, received 990609, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing before the traveling panel closest to (left blank). The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000317. 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, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

The NDRB did note an administrative error on the original DD Form 214. Block 25, Separation Authority should read: ”NAVMILPERSMAN Article 1910 - 142” vice “MILPERSMAN 3630605, 3630600”, Block 28, Narrative Reason for Separation should read: “MISCONDUCT” vice “MISCONDUCT DUE TO COMMISSION OF A SERIOUS OFFENSE. The original DD Form 214 should be corrected or reissued as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. I had been discharged out of the Navy under other than honorable conditions because of misconduct.
I had three offenses (a) dereliction of duty, (b) Larceny (c) disrespect.

2. I was accused of Larceny - because there was a mix up in civilian clothe, between me and my shipmate, where we both had a pair of black jeans and he accused me of stealing his.
This was a false accusation and led me to 45 days restriction and a second offense.

3. Disrespect - I was approached by a second class Petty Officer in the wrong way and I told him he shouldn't have came at me that way so he wrote me up for disrespect.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     950525 - 951210  COG

 Period of Service Under Review :
Date of Enlistment: 951211               Date of Discharge: 980211

 Length of Service (years, months, days):

         Active: 02 02 01
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 37

 Highest Rate: MMFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (1)    Behavior: 1.00 (2)                OTA: 2.00

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, SSDR

 Days of Unauthorized Absence: 6

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 :

970326:  Applicant to unauthorized absence 0900, 26Mar97.

 970401:  Applicant from unauthorized absence 1200, 01Apr97 (6 days/surrendered).
970926:  NJP for violation of UCMJ, Article 92:Dereliction of duty by failing to report proper bilge level readings.
         Award: Forfeiture of $505 per month for 1 month, restriction and extra duty for 15 days. Suspended for 6 months. No indication of appeal in the record.
970926:  Retention Warning: Advised of deficiency (Dereliction of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
971106:  NJP for violation of UCMJ, Article 121: Larceny of 1 pair of Polo jeans and a T-shirt on 9Sep97.
         Award: Forfeiture of $450 per month for 1 month restriction and extra duty for 45 days, reduction to MMFR. No indication of appeal in the record.
971106:  Retention Warning: Advised of deficiency (Larceny.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
971219:  NJP for violation of UCMJ, Article 86 (5 specs): Failure to go to appointed place of duty, to wit: restricted men's muster on 29Nov97, 4Dec97, 15Dec97 16Dec97and 17Dec97, violation of UCMJ, Article 91: Disrespect to a PO2 on 8Dec97 by saying "I don't give a fuck about a second class".
         Award: Forfeiture of $450 per month for 1 month, restriction and extra duty for 45 days. No indication of appeal in the record.
980105:  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.
980105:          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.
980204:  Commander, Cruiser-Destroyer Group ONE directed the applicant's 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.

980219:  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. Applicant separated 11 February 1998.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 980211 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 1-3, 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 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.

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. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 91, for disrespect to superior petty officer, 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, DC 20374-5023       


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