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NAVY | DRB | 2000_Navy | ND00-00362
Original file (ND00-00362.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND00-00362

Applicant’s Request
The application for discharge review, received 000202, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a documentary record discharge review. The applicant listed AMERICAN LEGION as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000928. 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.

The NDRB did note an administrative error on the original DD Form 214. Block 24, Character of Service should read: “Under Other Than Honorable Conditions” vice “Other Than Honorable”. The original DD Form 214 should be corrected or reissued as appropriate.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (EQUITY ISSUE) This former member opines that his UOTHC discharge is to harsh because other service members being separated for the same reasons received higher characterizations of service. On this basis, he avers that upgrade of discharge to honorable is warranted.

2. (EQUITY ISSUE) This former member further requests that the Board include provision of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     900105 - 900111  COG

 Period of Service Under Review :
Date of Enlistment: 900112               Date of Discharge: 911012

 Length of Service (years, months, days):

         Active: 01 09 01
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 32

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (2)    Behavior: 3.40 (2)                OTA : 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NDSM, SASMwb*

Days of Unauthorized Absence: 2

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 :

910118:  NJP for violation of UCMJ, Article 86: Fail to go at time prescribed to appointed place of duty, to wit: 0500 Morning Muster on the mess decks, violation of UCMJ Article 91: Fail to obey lawful order from a petty officer to help bag up trash on 910104, violation of UCMJ Article 128: Assault upon another service member by hitting him in the mouth with his fist on 910104.
         Award: Forfeiture of $250.00 per month for 2 months, restriction and extra duty for 30 days, reduction to E-1. No indication of appeal in the record.

910118:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 86: Failure to go at time prescribed to appointed place of duty; violation of UCMJ, Article 91: Willful disobedience of a petty officer; violation of UCMJ, Article 128: Assault.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910801:  Retention Warning: Advised of deficiency (Suicide ideation, Adjustment disorder with depressed mood; Dependent and Immature traits as evidenced by statements you are going to commit suicide by shooting yourself and creating an auto accident), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
                 
910821:  Psychiatric Evaluation: Patient hospitalized at Naval Hospital San Diego in-patient psych from 910723 to 910726. Stressor at that time included: 1. Finding his father was not the man he called "father"; 2. Break up of a 3 month relationship; and 3. Dissatisfaction with the Navy. Patient denies current suicidal/homicidal intent or plan. He does report chronic suicidal thoughts but knows suicide is not the answer. Recommendation: Patient is fit for full duty and is responsible for his actions, but is judged to be unsuitable for retention in the USN. Patient is not considered to be mentally ill, but manifest a long standing disorder of character and behavior which is of such severity as to render this individual incapable of serving adequate in the Navy. Patient does not require and will not benefit from hospitalization or psyche treatment. Although not judged to be suicidal/homicidal, patient is judged to represent a continuing danger to self or others if retained in the Naval Service. Patient is deemed fit to return to duty for immediate processing for admin separation which should be initiated immediately in compliance with NAVMILPERSCOM INST 1910.1D AND NAVOP 013/87.

910905:  NJP for violation of UCMJ, Article 86: UA from unit from 0700, 910803 until 0650, 910805 [1day], and UA 0700, 910902 until 0700, 910903 [1day].
         Award: Forfeiture of $150.00 per month for 2 months, restriction and extra duty for 21 days. No indication of appeal in the record.
910920:  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 violation of UCMJ, Article 91: Failure to obey a lawful order of a petty officer on 910104; Article 121: Assault upon another service member by hitting him in the mouth with a fist on 910104; and, by reason of Convenience of the Government due to Personality Disorder.
910920:          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.
911004:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offenses and by reason of convenience of the government due to personality disorder. Commanding officer’s comments (verbatim): FR (Applicant) personality disorder, coupled with his disciplinary infractions, have made him a detriment to good order and discipline onboard this command. I most strongly recommend his separation be approved and that the characterization of his service be other than honorable.

911008:  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 911012 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 the applicant’s issue 1, the Board determined this issue is without merit. The applicant states other service members being separated for the same reasons received a higher characterization of service. The applicant provided no documentation to support this issue. Violation of UCMJ, Article 91 and Article 128 are serious offenses, punishable by court martial but the applicant’s command chose to pursue administrative separation. The discharge was proper and equitable. Relief denied.

 The applicant’s representative submitted the following as issue 2: (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). However, 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. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. 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, is considered. The applicant provided no documentation to support post-service consideration. The applicant must provide evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order to receive consideration for post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. He is encouraged to continue his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief denied.

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, Disobeying a lawful order from a Petty Officer and Article 128, Assault upon another swervice member, 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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