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NAVY | DRB | 1999_Navy | ND99-01111
Original file (ND99-01111.rtf) Auto-classification: Denied


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

ex-FA, USN
Docket No. ND99-01111

Applicant’s Request
The application for discharge review, received 990817, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant did not designate a 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: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Convicted by a civil court for offense(s) occurring during current term of military service , authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. While a juvenile, between the ages of 15 and 18, 1 engaged in consensual sex with an underage female. I realize this was wrong and sincerely regret this behavior.

At the age of 19, 1 enlisted in the Navy, where I received good ratings for a period of 2 years. In 1989, my civilian misconduct became known and the Navy was contacted by civil authorities. My Navy lawyer said that I could expect to be discharged following the resolution of Operation Desert Storm. Since my Navy record was clear of any criminal activity, I expected to receive an Honorable Discharge. Unfortunately, as a result of the stress I was experiencing while awaiting discharge and imprisonment, I stupidly chose to calm myself by using illegal drugs. When my urine test disclosed this, I was summarily discharged with an Other Than Honorable Conditions discharge.

Subsequently, I was imprisoned in a State Prison from January 31, 1990 until July 6, 1999, serving 9 1/2 years of a 10 year sentence. I am presently serving the balance of my sentence on parole.

The stigma of this discharge designation has bothered me for many years. I joined the Navy to follow what I felt was a family tradition, since my deceased father followed in the steps of his two brothers, who had served in the Navy during World War II.

As I stated earlier, I sincerely regret my civilian offense and have accepted full responsibility and punishment for it. By the same token, I also accept full responsibility for my foolish behavior in the Navy that resulted in disciplinary action against me. However, I would offer that my own immaturity coupled with facing both discharge from the Navy and a civilian jail sentence was something I was unable to mentally or emotionally overcome. It was never my intention to do anything that would bring discredit on the United States Navy. I enjoyed my enlistment, learned a lot, and except for the civilian misconduct, I believe I would have had an honorable enlistment.

I, therefore, respectfully request that the Naval Discharge Review Board change my discharge to General Under Honorable Conditions.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2 copes)
Letter of Recommendation from D_ R. A_, Col, Inf-USAR (Ret)
Fact Sheet HE IS PLEASED (HIP) Organization (3 pages)
Applicant's letter to the Board providing corrected address and documents

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     870422 - 870818  COG

 Period of Service Under Review :
Date of Enlistment: 870818               Date of Discharge: 911002

 Length of Service (years, months, days):

         Active: 04 01 14 (Does not exclude lost time - UA/Confinement)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 00

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.7 (2)     Behavior: 3/6 (2)                 OTA: 3.6

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 640 (this includes 76 days UA & confinement)

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Convicted by a civil court for offense(s) occurring during term of military service, authority: MILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

890516:  CNMPC advised USS KITTY HAWK that member reported as a possible candidate for the Family Advocacy Program and requested information concerning the applicant.
890731:  NJP for violation of UCMJ, Article 86: UA from 89JUN02 until 89JUN03; UA from 89JUN20 until 89JUN22; UA from 89JUN23 until 89JUN24; UA from 89JUN26 until 89JUN27; UA from 89JUN29 until 89JUL06; UA from 0700 to 1100, 89JUL10; UA from 89JUL11 until 89JUL17; UA from 89JUL19 until 89JUL20 and UA from 89JUL24 until 89JUL28 (26 days).
         Award: Forfeiture of $200 per month for 2 months, confinement on bread and water for three days. No indication of appeal in the record.
890824:  NJP for violation of UCMJ, Article 112A: wrongful use of marijuana during period of 89JUN18 through 89JUL17.
         Award: Forfeiture of $391.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
890912:  Unauthorized absence from USS KITTY HAWK at Naval Ship Yard, since 0700.

891011:  Surrendered onboard USS KITTY HAWK AT 1430 (29 days). Retained on board for disciplinary action.

891026:  Summary Court Martial
         Charge I: violation of UCMJ 86: unauthorized absence from 12Sep89 until 11Oct 89.
         Finding: Charge I - guilty
         Sentence: Confinement for 24 days, forfeiture of two-thirds pay per month for 1 month and confinement on 3 days bread and water.
         CA 891026: Sentence

890905:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your enlisted service record.

890905:  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.
891127:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding officer’s comments (verbatim): "FA (Applicant) has been on board this command for 20 months. On 31 July 1989, he was punished at Captain's Mast for multiple unauthorized absence offenses. Less than a month later on 24 August 1989, FA (Applicant) was again punished at Captain's Mast for the wrongful use of marijuana. While pending administrative processing, he absented himself for 29 days for which he received a summary court-martial. His absence offenses and drug abuse have made him totally unacceptable as a member of my crew. FA (Applicant) does not possess the requisite potential for rehabilitation or further useful service. He will be offered VA treatment upon discharge. I most strongly recommend his immediate separation from the naval service with an other than honorable discharge.

891214:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

900130:  Report of Declaration of Desertion: Applicant declared deserter 25JAN90 having been an unauthorized absentee since 0700, 26DEC89 from USS KITTY HAWK located at Naval Shipyard, Philadelphia, PA.
900205:  Civil Conviction: Commonwealth of Pennsylvania; found guilty for Involuntary Deviate Sexual Interest.
 Sentence: Term of imprisonment not less then 5 years nor more than 10 years, no contact with victim.
910227:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction and unauthorized absence.

910415:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
910809:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to commission of a serious offense and misconduct due to a civil conviction, that these misconduct warranted separation, and recommended discharge under other than honorable conditions.

910813:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction and misconduct due to commission of a serious offense, to wit: Unauthorized absence from 26 December 1989 to present and civilian conviction on 30 January 1990. Commanding officer’s comments (verbatim): "FA (Applicant) is no longer considered suitable for continued naval service after his civil conviction and unauthorized absence from 26 December 1989 to the present. Based on his record and conviction, it is respectfully requested that FA (Applicant) be separated from the naval service with an other than honorable discharge."

910904:  TPU Philadelphia PA advised BUPERS that applicant filed an appeal on 2MAR90, but the sentence was affirmed as approved in court.

910917:  BUPERS directed the applicant's discharge in absentia under other than honorable conditions by reason of misconduct due to civil conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 911002 under other than honorable conditions for misconduct due to civil conviction (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 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 issuance, and that his rights were prejudiced thereby. Relief is therefore denied.

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, can be considered. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. In reviewing the applicant’s post service, the Board noted that he has begun to make in attempting to recoup his reputation which has been sullied by his misconduct in the Navy and in his civilian life. However, the applicant’s post-service conduct is not of such magnitude as to overshadow the applicant’s misconduct. Relief will not be granted at this time. The applicant is reminded that he remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at a personal appearance hearing is highly recommended. The possibility of favorable action in the applicant’s case will increase with the amount of time he maintains his status as a contributing member of society. Verifiable documentation of such a lifestyle is essential.

Pertinent Regulation/Law (at time of discharge)

 A. The Naval Military Personnel Manual, (NAVPERS 15560C, effective 15 Aug 91 until 04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT.

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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