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NAVY | DRB | 2000_Navy | ND00-00624
Original file (ND00-00624.rtf) Auto-classification: Denied


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

ex-HN, USN
Docket No. ND00-00624

Applicant’s Request
The application for discharge review, received 000418, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The applicant listed the American Legion as her representative on the DD Form 293. In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 001026. 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 1910 - 142 (formerly 3630605).
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. (Equity Issue) Her UCMJ violations notwithstanding, this former member opines that her overall service record warrants a fully honorable.

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 her application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from applicant dated November 22, 1999
Statement from reverend dated September 22, 1999
Character reference dated January 23, 2000
Character/job reference dated December 13, 1999
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               930802 - 970731  HON
         Inactive: USNR (DEP)     920814 - 930801  COG

 Period of Service Under Review :
Date of Enlistment: 970801               Date of Discharge: 981116

 Length of Service (years, months, days):

         Active: 01 03 06
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 63

 Highest Rate: HN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (2)    Behavior: 3.80 (2)                OTA: 3.90

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, 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 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

970801:  Applicant reenlisted for 4 years.

 980608:  NJP for violation of UCMJ, Article 91: Willful disobedience of petty officer on 21May98.
         Award: Extra duty for 7 days, reduction to HN. Reduction suspended for 6 months. No indication of appeal in the record.
980914:  Applicant charge with violation of the UCMJ, Article 91: Insubordinate conduct toward a petty officer on 10Sep98, to wit: treat with disrespect in language and deportment HM2, a senior petty officer, by saying to her "I thought PO H_ was the LPO!" and then walking out of the [area/spaces??] only to return within minutes and begin verbally arguing with HM1 H_. Violation of the UCMJ, Article 92: Failure to obey an order on 10Sep98, to wit: to report to the Accessioning area of the lab to work from 0730-0930 on 10Sep98, by remaining at her bench in the Bacteriology Section and never assisting in the Accessioning Area as directed to from 0730-0930.
980918:  Applicant signed notification and election of rights. Applicant elected to consult with counsel.
980921:  Applicant consulted with counsel. Applicant refused non-judicial punishment.
981008:  Vacate suspended reduction to HN awarded at CO's NJP of 8Jun98 due to continued misconduct.

981020:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.
981020:          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.
981102:  Commander, Naval Medical Center, Portsmouth directed the applicant's 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 981116 general (under 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).

The applicant’s representative submitted the following as issue 1: (Equity Issue) Her UCMJ violations notwithstanding, this former member opines that her overall service record warrants a fully honorable. The Board, after carefully reviewing the applicant’s service record and other evidence presented to the NDRB, determined that relief is not warranted concerning this issue. The applicant violated UCMJ Article 91 twice for being insubordinate and disobedient. She also violated UCMJ Article 92 for failing to obey an order. According to the Manual for Courts-Martial, these offenses could have been adjudged at a Special or General Court-Martial. The applicant was fortunate indeed to receive a general discharge.

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 her application. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 three character references as documentation of her post-service. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. She is encouraged to continue with her pursuits and is reminded that she 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), Change 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE .

B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 91, for willful disobedience of a petty officer, 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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