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NAVY | DRB | 1999_Navy | ND99-01096
Original file (ND99-01096.rtf) Auto-classification: Denied


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

ex-MMFA, USN
Docket No. ND99-01096

Applicant’s Request
The application for discharge review, received 990817, 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 000427. 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. As I explain in document #3, the "Pattern of Misconduct" and "Serious Offense" are not supported and do not warrant separation with a characterization of General Discharge and assignment of an RE-4 code. The term "Pattern of Misconduct" leads one to view my actions as insubordinate and uncorrectable. My actions were immature, not criminal. I have learned considerably from the experience. I was not afforded proper counseling from the experience. I was not afforded proper counseling by my superiors at the time of my 1 st incident. I respectfully request review of my discharge and reclassification to Honorable with an RE-1 code.

 To Whom it May Concern;

I am writing to you today in an appeal for your assistance. I respectfully request a review of my discharge. I respectfully request that my reenlistment code be changed from RE-4 to RE- 1. A series of events occurred this past fall which resulted in my discharge from the Navy. Very briefly the circumstances leading to discharge are as follows:

1. High pressure recruitment for the Navy nuclear power program
2. Enlisted December 1997
3 Exceptional record during basic training
4. Exemplary conduct during "N' school in Orlando, Florida
5. Excellent conduct and academics first two months of nuclear power school
6. Disobeyed a standing regulation (no females in barracks room). The female was a classmate who had asked to use my restroom. No sexual activity took place.
7. Punished at Captain's Mast with reduction in rank, 20 days restriction, 20 days extra duties, oral admonition, and a fine of $200
8. Ridicule from classmates regarding my reduction in rank and a seriously diminished self-image led me to break restriction and leave the base, resulting in two charges (UA and breaking restriction). I returned in 24 hours.
9. Punished at Captain's Mast with reduction in rank, 45 days extra duties, $300/month for two months fine, and oral admonition. In addition the Commanding Officer ordered that I be processed for administrative separation for "pattern of misconduct".

While there is no excuse for disobeying a written order ("no females in the barracks"), there is an explanation. We were brought to the Naval Nuclear Power School in July 1998 and classes did not begin until September. During this period we were permitted to have female guests in our quarters. I had come from a civilian university prior to enlisting and lived in the dorms on campus. We were permitted to have female guests in our dormitory rooms. I have always behaved responsibly and with decorum. I would not jeopardize my reputation, nor that of any female guest by engaging in inappropriate behavior.

Regarding leaving the base and breaking restriction: I was enormously proud when I was promoted to Machinist's Mate 3d Class. The loss of that chevron at Captain's Mast was devastating to me. I wore my uniform with considerable pride as my military bearing marks attest. The loss of the chevron and the ridicule of my classmates cost me a great deal of personal dignity. I broke restriction for one reason, I went to the beach to a lighted flag pole flying the American Flag. I prayed, I soul-searched, and I contemplated my actions and firmly resolved to never repeat the circumstances which had caused my reduction and restriction. Upon my return to the base I was seen and advised that in the morning I would be brought up on charges of breaking restriction. I didn't feel that I could tolerate another reduction in rank and further restriction. I got in my car and left the base and drove for hours. I finally realized the futility of my action and mustered my courage to return and face my fate.

I believe there are several problems with the processes which were taken with me. I was heavily recruited by the Navy because of my academic records and lack of any legal trouble. I had never been in any form of trouble (in or out of the Navy) before this single incident of allowing a classmate to use my bathroom. As a result of this incident and my subsequent discharge, my reputation is tarnished, and I have the stigma of an RE-4 code to live with.

I do not understand discharging a sailor, in whom thousands of dollars have been invested in training, for the "crimes" of allowing a female classmate to use his restroom and one day of unauthorized absence. My DD214 reflects a General Discharge (under honorable conditions). These misdemeanor infractions did not warrant this action. I respectfully request a review of my discharge. I respectfully request that my reenlistment code be changed from RE-4 to RE-1. I believe I am able to make a meaningful contribution to the Armed Forces of the United States and I long to serve my country honorably. Most sincerely,
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from applicant (2 copies) (also used as an issue)
Copy of DD Form 214 (2 copies)
Letter from Special Assistant, Congressional Liaison Office (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)              971216 - 971228  COG

 Period of Service Under Review :
Date of Enlistment: 971229               Date of Discharge: 981120

 Length of Service (years, months, days):

         Active: 00 10 23
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (24 month extension)

 Education Level: 12                        AFQT: 65

 Highest Rate: MM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                           Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 1

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

980923:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order by having female in his BEQ room.
         Award: Forfeiture of $200 per month for 1 month, restriction for 20 days, reduction to MMSN, oral admonition. No indication of appeal in the record.
980923:  Retention Warning: Advised of deficiency (Failure to obey a lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
981009:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 29SEP98 to 30SEP98 (1 day), violation of UCMJ Article 134: Break restriction on 19SEP98.
         Award: Forfeiture of $300 per month for 2 months, extra duty for 45 days, reduction to MMFA, oral admonition. No indication of appeal in the record.
981009:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due a Pattern of misconduct and misconduct due to the Commission of a serious offense.
981009:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to waive all rights.
981016:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to a Pattern of misconduct and misconduct due to the Commission of a serious offense.

981118:  Commander, Naval Base, Jacksonville 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 981120 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).

In the applicant’s issue 1, the Board determined this issue is without merit. The applicant states the “Pattern of Misconduct” and “Serious Offense” are not supported and do not warrant separation with a characterization of General Discharge and a RE-4 code. He also states he was not afforded proper counseling. Navy regulations and the Manual for Courts-Martial determine what constitutes a pattern of misconduct, serious offense, as well as all other categories of misconduct. Failure to obey a lawful order or regulation constitutes a serious offense. Based on the applicant’s documented misconduct, his Commanding Officer was within his legal authority to discharge the applicant for Commission of a serious offense and characterize his discharge as General (under Honorable conditions). The applicant committed a court-martial offense (violation of UCMJ, Article 92), which is punishable with a punitive discharge, if adjudged at a court-martial. A reenlistment code of RE-4 was appropriate. The applicant states his misconduct was immature and not criminal. The applicant was held accountable for his actions and the reason for his misconduct was/remains irrelevant. In regards to not receiving counseling, the applicant received a retention warning on 980923 for failure to obey a lawful order. This was legal and formal counseling. He could have been administratively separated for his misconduct without the retention warning but was retained on active duty. The applicant violated that retention warning by his unauthorized absence. The discharge was proper and equitable. Relief is denied.

The applicant provides reasons for his misconduct and questions why thousands of dollars were invested in his training, for him to be discharged for allowing a classmate to use his restroom and for one day of unauthorized absence. The applicant’s Commanding Officer did not indiscriminately separate him from military service. The applicant was issued a retention warning for his first misconduct, which advised him to correct his behavior or he could be separated from the military, but the applicant failed to comply. Additionally, he demonstrated a total disregard for authority by breaking restriction. The applicant established a pattern of unreliability and it was the Commanding Officers decision to administratively separate him after the second NJP. The discharge was proper and equitable. Relief is denied.

The following is provided for the applicant’s benefit. There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct, subsequent to leaving military service. The NDRB reviews the propriety (did the Navy follow its own rules in processing the applicant for discharge) and equity (did the applicant receive a discharge characterization in keeping with Navy guidance or was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge to determine if proper procedures were followed. This applicant’s discharge was proper and equitable . Additionally, the NDRB is authorized to award clemency for post-service factors (what has the applicant done since discharge to become a contributing member of his/her community and to society in general). Those factors include but are not limited to the following: Evidence of continuing educational pursuits (transcripts, diploma, degree or vocational-technical certificates), a verifiable employment history (letter of recommendation from employer), documentation of community service (letter from activity/community group), certificate of non-involvement with civil authorities (police records check) and proof of not using drugs (detoxification certificate). The applicant did not provide any documentation of good character or conduct, which would warrant an upgrade to his discharge. The applicant is encouraged to establish a reputation of good character and document his accomplishments. Documentation to support any claim of good character is a must to receive any consideration based on post-service achievements . He remains eligible for a personal appearance hearing, to discuss his post-service accomplishments, provided an application is received by the NDRB within fifteen years from the date of his discharge. Legal representation at the hearing is advisable.

 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 [e.g., 86, for unauthorized absence for a period in excess of 30 days] 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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