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NAVY | DRB | 2000_Navy | ND00-00347
Original file (ND00-00347.rtf) Auto-classification: Denied


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

ex-MSSA, USNR(TAR)
Docket No. ND00-00347

Applicant’s Request
The application for discharge review, received 000121, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance hearing before a Traveling Panel closest to Cleveland or Lorain, OH. The applicant did not designate a 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 and that the NDRB does not travel outside the Washington, D.C. area for hearings.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000831. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety but did discern inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall change. The discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. My discharge was inequitable because it was based upon one isolated occurrence when I returned to the military base and was declared AWOL. I had traveled to Lorain Ohio to see my father who was terminally ill. The Red Cross notified me to return home in Dec of 92 to care for father who was dying. I was to return to the military base, but due to severe weather & closing of the Cleveland Hopkins Airport, I arrived back at base 2 days late. I phoned the base to be picked up, but I was not provided transportation & had no money to take a cab/bus, because of this I was given a Other Than Honorable discharge.

 Documentation
Only the applicant's service record was reviewed, as the applicant did not provide additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 900425               Date of Discharge: 930114

 Length of Service (years, months, days):

         Active: 02 08 18
         Inactive: 00 00 02

 Age at Entry: 23                          Years Contracted: 8

 Education Level: 12                        AFQT: 32

 Highest Rate: MSSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 3.00 (2)                OTA : 3.2

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, NDSM

 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 :

900427:  Commenced 48 months of active duty.

 910125:  NJP for violation of UCMJ, Article 86 (2 Specs): failure to report to place of duty at 0730 on 26 Dec 1990 and failure to report to place of duty at 0500 on 2 Jan 91.
         Award: Restriction and extra duty for 45 days. No indication of appeal in the record.
910402:  Retention Warning: Advised of deficiency (Chronic tardiness while attached to Galley at the Supply Department at Naval Air Station, New Orleans), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
921002:  NJP for violation of UCMJ, Article 86 (2 Specs): fail to go appointed place of duty; violation of UCMJ Article 91 (2 Specs): disobey a lawful order.
         Award: Reduction to E-2. No indication of appeal in the record.

921002:  Applicant notified of intended recommendation for discharge with a general under honorable conditions by reason of misconduct due to minor disciplinary infractions as evidence by eight minor violations of the UCMJ which have been disciplined at non-judicial punishments on 25 Jan 91, and 2 October 92.
921002:  Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected all rights and objected to the discharge.
921009:  Commanding officer recommended discharge with a general (under honorable conditions) by reason of misconduct due to minor disciplinary infractions as evidenced by eight violations of the UCMJ. Commanding officer’s comments (verbatim): "MMSA (Applicant) has been a severe administrative burden to this command. I recommended separation from the Naval service with a general discharge due to a pattern of misconduct."
921027:  BUPERS advised the command that the admin discharge package contained errors and that applicant is to be reprocessed for misconduct due to a commission of a serious offense and offered an admin board.
921116:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by service record entries.
921116:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
921217:  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 (verbatim): "MMSA (Applicant) has been a severe administrative burden to this command. I recommended separation from the Naval service with an other than honorable discharge due to commission of a serious offense as evidenced by service record entries."

930106:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930114:  Applicant discharged in absentia.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 930114 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 but inequitable (D and E).

In response to the applicant’s issue, the Board found, after taking into consideration the applicant’s service record and enlisted performance evaluation averages, that the discharge of under other than honorable conditions was too harsh for the misconduct committed by the applicant. The NDRB concurs with the applicant’s commanding officer’s original recommendation for a general discharge due to the minor nature of the offenses. However, the reason for discharge, commission of a serious offense, shall remain the same based on the fact that the applicant did disobey a lawful order. Accordingly, the Board voted to grant relief in the form of an upgrade of characterization of service to general, under honorable conditions.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until
04 Mar 93, 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 91, 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 view DoD Directive 1332.28 and other Decisional Documents by going online at " afls14.jag.af.mil ".

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
                  720 Kennon Street SE RM 309
                  Washington Navy Yard DC 20374-5023      


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