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NAVY | DRB | 2000_Navy | ND00-00428
Original file (ND00-00428.rtf) Auto-classification: Denied


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

ex-RMSA, USN
Docket No. ND00-00428

Applicant’s Request
The application for discharge review, received 000222, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant designated civilian counsel as her representative on the DD Form 293.

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 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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. Was the OTH Discharge unfair given the service member's age, financial circumstances and good evaluation reports?

2. In view of the service member's exemplary conduct and educational performance since her discharge, an upgrade to honorable or in the alternative, a general under honorable conditions, should be granted.

3. The incidents were minor and resulted in no prejudice to the government.

4. No efforts were made to transfer me to another command before my administrative discharge.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter of Recommendation from S_ C_-O_ dtd Jan 20, 2000
Character Reference letter from W_ P. H_, Ph.D. dtd Jan 20, 2000
Character Reference letter from Dr. M_ L. R_ dtd Jan 20, 2000
Applicant's Resume
Copy of service/medical records (60 pages)
Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     880419 - 880531  COG

 Period of Service Under Review :
Date of Enlistment: 880601               Date of Discharge: 920504

 Length of Service (years, months, days):

         Active: 03 11 04
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (19 months extension)

 Education Level: 12½                        AFQT: 40

 Highest Rate: RM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.4 (6)     Behavior: 3.43 (7)                OTA : 3.50

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, NMOSR

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 :

911129:  NJP for violation of UCMJ, Article 92: failure to obey order or regulation, to wit: on or about 30 Oct 91, was derelict in the performance of those duties in that she willfully failed to comply with the Secretary of the Navy Instruction 5211.5C, paragraph 7.B, dated 11 Jul 86 by disclosing information protected under the Privacy Act of 1974 to a third party, as it was her duty to do.
         Award: Reduction to E-3 (suspended for 6 months). No indication of appeal in the record.
911217:  Retention Warning: Advised of deficiency (dereliction in the performance of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
920121:  Vacated previous suspended reduction in rate from RM3 to RMSN awarded at CO's NJP on 91NOV29 due to continued misconduct.
920406:  NJP for violation of UCMJ, Article 92 (2 Specs): failure to obey lawful order. Spec 1 - on or about 13 Dec 91, violate a lawful general regulation, to wit: OPNAV Instruction 5510.1H, Charge 2, Department of the Navy Information and Personnel Security Program Regulation, dated 29 April 1988, Chapter 13-2, by wrongfully and without authority, removing classified material from the Atlantic Fleet Weapons Training Facility, to wit: photocopied pages out of Naval Warfare Publication Number 4. Spec 2 - on or about 13 December 1991, was derelict in the performance of her duties in that she willfully failed to safeguard copies of pages taken out of Naval Warfare Publication Number 4, and failed to ensure that said documents remained in a secured area, as it was her duty to do.
         Award: Reduction to E-2, extra duty for 45 days and reprimand in writing. No indication of appeal in the record.
920406:  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 all punishments under the UCMJ in your current enlistment.
920406:  Applicant advised of her rights and having consulted 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 and to submit statements. Applicant did not object to the separation.
920409:  Applicant's Statement

 920417:  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): "RMSA (Applicant) has demonstrated a pattern of negligence in following information security procedures and handling classified documents. In the most recent incident, she was apprehended by NavSta Security Detachment and NIS with classified material laying in clear view on the back seat of her unlocked care in the NEX parking lot. I have initiated the procedures to withdraw her clearance and feel very strongly her actions should preclude her from receiving any of the benefits associated with a General Discharge. The award of an Other Than Honorable Discharge is both warranted and appropriate."
920423:  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 920504 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: “Was the OTH Discharge unfair given the service member's age, financial circumstances and good evaluation reports?” The Board found that the applicant’s age, education level, and test scores qualified her for enlistment. While she may feel her age was a factor that contributed to her action, the record clearly reflects her willful disregard for the requirements of military discipline and demonstrated that she was unfit for further service. The record is devoid of evidence that the applicant was not responsible for her conduct or that she should not be held accountable for her actions. The Board found the applicant’s misconduct significant enough to warrant an Other Than Honorable discharge. Relief not warranted.

The applicant’s second issue states: “In view of the service member's exemplary conduct and educational performance since her discharge, an upgrade to honorable or in the alternative, a general under honorable conditions, should be granted. ” The NDRB is authorized to consider post-service factors in the re characterization of a discharge. The applicant must be aware that 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, may be considered by the NDRB. While the NDRB finds the applicant’s post service educational pursuits commendable, the Board did not find enough to warrant an upgrade in the discharge. Relief not warranted.

The applicant’s third issue states: “The incidents were minor and resulted in no prejudice to the government.” The NDRB found that contrary to the applicant’s issue the offenses for which she was separated are considered serious offenses under the UCMJ and would warrant a punitive discharge if tried at court martial. Relief is not warranted.

 The applicant’s fourth issue states: “No efforts were made to transfer me to another command before my administrative discharge.” The NDRB found nothing in the record that required the parent command to transfer the applicant. The NDRB found this issue non decisional. Relief is not warranted.

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. 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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