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NAVY | DRB | 2000_Navy | ND00-00375
Original file (ND00-00375.rtf) Auto-classification: Denied


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

ex-AOAR, USN
Docket No. ND00-00375

Applicant’s Request
The application for discharge review, received 000127, 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000907. 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).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I was unaccounted for one day and may chain of command was notified of my absence, but still proceeded to follow through with the charge of U.A, because I was not socially part of my division.

2. Due to depression I was told to see a psychiatrist. The doctor that gave me my evaluation recommended that I should be discharged from the U.S. Navy because of my depression, but the doctor also left this up to the commanding officer's discretion. The commanding officer disapproved the doctor's recommendation therefore; I took matters upon myself and left my source of depression the U.S.S Boxer for twenty-nine days. When I returned I was awarded a second non-judicial punishment because my command felt I wasn't important enough to be helped.

3. While I was serving my punishment of restriction to the U.S.S Boxer I revealed to the Chaplain on the boat that I was still under depression because I was torn between my homosexuality and trying to cover it by trying to be strait. At that point I was to be discharged, but my pears were not to have the reason of my discharge be revealed. Since my chain of command told a few of my pears, which lead to everyone knowing, I was transported off the boat and onto a base barracks where I waited for my discharge papers. When I was given my discharge papers, I was given a discharge of "UNDER OTHER THAT HONORABLE CONDITIONS". I feel that this type of a discharge was given to me unfairly. I feel that because of the above reasons I was discriminated against and the discharge that I should have been awarded was a "GENERAL DISCHARGE".

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies of DD Form 214 (2).

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               None
         Inactive: USNR (DEP)     960530 - 961216  COG

 Period of Service Under Review :
Date of Enlistment: 961217               Date of Discharge: 981229

 Length of Service (years, months, days):

         Active: 01 11 16
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 53

 Highest Rate: AOAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

Military Decorations: None

 Unit/Campaign/Service Awards: AFEM

Days of Unauthorized Absence: 28

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 :

980716:  NJP for violation of UCMJ, Article 86: UA from 980706 to 980707.
         Award: Forfeiture of $150.00 per month for 1 month (suspended for 6 months), restriction and extra duty for 7 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.

981009:  Punishment of forfeiture of $150.00 pay per month for 1 month and reduction in rate to E-1 suspended at CO's NJP on 980716 vacated due to continued misconduct.
981009:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700, 980826 until 2030, 980923 [28days/S], violation of UCMJ Article 87: Missing Ship's Movement.
         Award: Forfeiture of $250.00 per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.

981014:  Retention Warning: Advised of deficiency (Misconduct as evidenced by non-judicial punishment of 981009, for violation of the UCMJ, Article 86 unauthorized absence from organization, to wit: USS BOXER from 0700, 980826 until 2030, 980923; Article 87 missing ship's movement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

981103:  Memorandum from Command Chaplain stating applicant made a public                           statement to him claiming he is bisexual.

 981116:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
981116:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
981123:  Commanding officer recommended discharge under other than honorable conditions by reason of pattern of misconduct, misconduct due to the commission of a serious offense and homosexual conduct.

981216:  CNMPC 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 981229 under other than 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).

 The applicant’s first issue states: “I was unaccounted for one day and may chain of command was notified of my absence, but still proceeded to follow through with the charge of U.A, because I was not socially part of my division.” The NDRB found no evidence, documentary or otherwise, to support that the NJP which followed this incident was unjust. Relief is not warranted.

The applicant’s second issue states: “Due to depression I was told to see a psychiatrist. The doctor that gave me my evaluation recommended that I should be discharged from the U.S. Navy because of my depression, but the doctor also left this up to the commanding officer's discretion. The commanding officer disapproved the doctor's recommendation therefore; I took matters upon myself and left my source of depression the U.S.S Boxer for twenty-nine days. When I returned I was awarded a second non-judicial punishment because my command felt I wasn't important enough to be helped.” The NDRB did not find the applicant’s issue reason to mitigate the offenses which resulted from his intentional Unauthorized Absence and Missing Ship’s Movement. Relief is not warranted.

The applicant’s third issue states: “While I was serving my punishment of restriction to the U.S.S Boxer I revealed to the Chaplain on the boat that I was still under depression because I was torn between my homosexuality and trying to cover it by trying to be strait. At that point I was to be discharged, but my pears were not to have the reason of my discharge be revealed. Since my chain of command told a few of my pears, which lead to everyone knowing, I was transported off the boat and onto a base barracks where I waited for my discharge papers. When I was given my discharge papers, I was given a discharge of "UNDER OTHER THAT HONORABLE CONDITIONS". I feel that this type of a discharge was given to me unfairly. I feel that because of the above reasons I was discriminated against and the discharge that I should have been awarded was a "GENERAL DISCHARGE". The NDRB found the applicant’s claim that his Other Than Honorable discharge is some form of discrimination is without merit. The applicant’s service clearly warranted an Other Than Honorable discharge as he had two NJP’s, one of which (Missing Ship’s Movement) is considered a serious offense. The NDRB noted the applicant was appropriately counseled of the consequences of further deficiencies in conduct but chose to continue his misconduct. 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. 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 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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