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NAVY | DRB | 2000_Navy | ND00-00838
Original file (ND00-00838.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND00-00838

Applicant’s Request
The application for discharge review, received 000628, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Columbus, GA. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) did not travel and all personal appearance hearings are held in the Washington National Capital Region. Subsequent to the application for review the applicant obtained American Legion as his representative.

 Decision
A personal appearance hearing discharge review was conducted in Washington, D.C. on 010501. 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.







THE FINDING FOR MISCONDUCT (3630605.96) IS EFFECTIVE FOR 961003 – 971211.
SPN CODE HKQ/JKQ EFFECTIVE 930628 – PRESENT. A general discharge for COSO is written:
“GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT”.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. (Equity Issue) This former member contends that there were extenuating circumstances surrounding his misconduct of record sufficient to warrant characterization of his discharge.

2. (Equity Issue) This former member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Certificate of Recognition from Lambs Farm.
Photograph of applicant.
Statement from applicant.
Applicant’s health record (1 page).
Sworn statement from Administrative Discharge Board (2 pages).
Letter of Deficiency (2 pages).
Georgia commercial driver’s license.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     950623 - 950726  COG

 Period of Service Under Review :
Date of Enlistment: 950727               Date of Discharge: 961004

 Length of Service (years, months, days):

         Active: 01 02 08
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

Education Level: 12                        AFQT: 41

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (1)    Behavior: 1.00 (1)                OTA: 2.33

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, AFSM, AFEM, NATO

Days of Unauthorized Absence: None

*5.0 evaluation system used.

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 :

960305:  Counseling: Advised of deficiency [(responsibilities (unauthorized absence 0715 to 0720)], notified of corrective actions and assistance available.

960319:  Counseling: Advised of deficiency [(responsibilities (unauthorized absence 1915 to 1950)], notified of corrective actions and assistance available.

960321:  Counseling: Advised of deficiency [(responsibilities (unauthorized absence 2100 to 2115)], notified of corrective actions and assistance available.

960323:  Counseling: Advised of deficiency [(responsibilities (unauthorized absence 1915 to 2000)], notified of corrective actions and assistance available.

960325:  Counseling: Advised of deficiency [(responsibilities (unauthorized absence 1800 to 1925)], notified of corrective actions and assistance available.

960327:  Counseling: Advised of deficiency [(responsibilities (unauthorized absence 1915 to 1917)], notified of corrective actions and assistance available.

960401:  Counseling: Advised of deficiency [(responsibilities (unauthorized absence 1915 to 2110)], notified of corrective actions and assistance available.

960406:  Counseling: Advised of deficiency [(responsibilities (unauthorized absence 1915 to 1930)], notified of corrective actions and assistance available.

960412:  Counseling: Advised of deficiency [(responsibilities (unauthorized absence 0500 to 0800)], notified of corrective actions and assistance available.

960523:  NJP for violation of UCMJ, Article 86: (4 specifications): Spec 1: Unauthorized absence 0500-0530, 960503; Spec 2: Left work without authority at 1630, 960503; Spec 3: Unauthorized absence 0715-0800, 960506; Spec 4: Unauthorized absence 0715-0800, 960507, violation of UCMJ Article 91: (2 Specifications): Willfully disobey a lawful order and disrespect in language on 960503.
         Award: Restriction and extra duty for 30 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.
960713:  Vacated suspended reduction to SR awarded at NJP dated 960523 due to continued misconduct.

960713:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty on or about 0445, 960619; violation of UCMJ Article 91: Disrespect toward a Chief Petty Officer on or about 960619.
         Award: Restriction and extra duty for 10 days. No indication of appeal in the record.

UNDATED:         Retention Warning: Advised of deficiency (UCMJ, ART 92 - Dereliction of duty by failing to complete 3M qualification), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960722:  NJP for violation of UCMJ, Article 86: (4 specifications): Failure to go to appointed place of duty, to wit: Restricted Personnel Muster on 2130, 960716, 1600, 960719, 0645, 960720 and 1130, 960721.
         Award: Restriction and extra duty for 10 days. No indication of appeal in the record.
         
960805:  Applicant notified of intended recommendation for discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct as evidenced by your service record.
960807:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
960913:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge general under honorable conditions.
961001:  Commanding officer recommended discharge general under than honorable conditions by reason of misconduct due to the commission of a serious offense.
990104:  NDRB documentary record review Docket Number ND98-00471 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 961004 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) This former member contends that there were extenuating circumstances surrounding his misconduct of record sufficient to warrant characterization of his discharge. The Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby. Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant. The Board will not grant relief concerning this issue.

The applicant’s representative submitted the following as issue 2: (Equity Issue) This former member further opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency as authorized under provisions of SECNAVINST 5420.174C., enclosure (1), paragraph 9.3. 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 a commercial driver’s license as documentation of his post-service. 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. The applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted.





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. 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 willfully disobeying a superior noncommissioned 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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