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NAVY | DRB | 2000_Navy | ND00-00460
Original file (ND00-00460.rtf) Auto-classification: Denied


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

ex-YN3, USNR(TAR)
Docket No. ND00-00460

Applicant’s Request
The application for discharge review, received 000228, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed civilian counsel as her representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 001121. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. My discharge was inequitable because there are no charges or counseling sheets providing that I committed a serious offense.



 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: None
         Inactive: USNR (DEP)     940914 - 941113  COG

 Period of Service Under Review :
Date of Enlistment: 941114               Date of Discharge: 971208

 Length of Service (years, months, days):

         Active: 03 00 26
         Inactive: None

 Age at Entry: 25                          Years Contracted: 8

 Education Level: 12                        AFQT: 50

 Highest Rate: YN3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (1)    Behavior: 3.80 (1)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

 Chronological Listing of Significant Service Events :

950629:  Applicant advised does not meet weight/body fat requirements. Applicant understands will be enrolled in Command Remedial Physical Conditioning Program until the next official PRT and that participation in this program is mandatory.

961023:  NJP for violation of UCMJ, Article 134: Communicating a threat; violation of UCMJ Article 91: Insubordinate conduct. [Extracted from CO's letter dated 3Dec97.]

970320:  NJP for violation of UCMJ, Article 92: Dereliction of duty; violation of UCMJ Article 115: Malingering. [Extracted from CO's letter dated 3Dec97.]
970404:  Applicant advised of 3 rd Physical Readiness Program Failure in a 4-year period due to exceeding height/weight and body fat limits. Body Fat: 39%.

970828:  Retention Warning: Advised of deficiency (Shown a trend of being disrespectful to your fellow shipmates culminating in an assault of your room mate. You have expressed your anger at a commissioned officer by telling a petty officer that you might injure the officer. You have also been a malingerer by not participating in the command's physical readiness program, while at the same time conducting sparring sessions and exhibitions in Tae Kwon Doe.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
970910:  NJP for violation of UCMJ, Article 92: Dereliction of duty. [Extracted from CO's letter dated 3Dec97.]

971112:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.
971117:          Applicant advised of her 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 and to submit a statement.
971121:  Applicant's statement.

 971203:  Commanding officer directed discharge general (under 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 971208 general (under 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 issue states: “My discharge was inequitable because there are no charges or counseling sheets providing that I committed a serious offense.” Review of the applicant’s service record found that the applicant was found guilty of violations of the UCMJ at three separate NJP’s all of which were for serious offenses. The offenses included: violation of UCMJ Article 134- Communication of a threat, Article 91- Insubordinate Conduct, Article 115- Malingering, and Article 92- Dereliction of Duty. The record also shows the applicant was formally counseled for her inappropriate behavior and was warned that continued misconduct would result in discharge. The applicant’s issue is without merit. Relief is denied.
The applicant is reminded that she is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 971212, Article 3630605, 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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